PART 1 Administration

CHAPTER 1. DEPARTMENT FOR CHILDREN AND FAMILIES

History

Amendments--2013 (Adj. Sess.). Chapter heading: Acts No. 96, § 199, and No. 131, § 1, substituted "for Children and Families" for "of Prevention, Assistance, Transition, and Health Access".

Amendments--1999 (Adj. Sess.). 1999, No. 147 (Adj. Sess.), § 4, substituted "department of prevention, assistance, transition, and health access" for "department of social welfare" in the chapter heading.

Subchapter 1. Policy, Organization, Powers, and Duties

§ 101. Policy.

It is the policy of the State of Vermont that:

  1. Its social and child welfare programs shall provide assistance and benefits to persons of the State in proven need thereof and eligible for such assistance and benefits under the provisions of this title.
  2. It is the purpose of its social and child welfare laws to establish and support programs that contribute to the prevention of dependency and social maladjustment and contribute to the rehabilitation and protection of persons of the State.
  3. Assistance and benefits shall be administered promptly, with due regard for the preservation of family life, and without restriction of individual rights or discrimination on account of race, religion, political affiliation, or place of residence within the State.
  4. Assistance and benefits shall be so administered as to maintain and encourage dignity, self-respect, and self-reliance. It is the legislative intent that assistance granted shall be adequate to maintain a reasonable standard of health and decency based on current cost of living indices. Notwithstanding this subdivision, the Department will amend rules that establish new maximum Reach Up grant amounts only when the General Assembly has taken affirmative action to increase or decrease the Reach Up financial assistance appropriation.
  5. The programs of the Department for Children and Families shall be designed to strengthen family life for the care and protection of children; to assist and encourage the use by any family of all available personal and reasonable community resources to this end; and to provide substitute care of children only when the family, with the use of available resources, is unable to provide the necessary care and protection to ensure the right of any child to sound health and to normal physical, mental, spiritual, and moral development.

    Added 1967, No. 147 , § 1; amended 1973, No. 152 (Adj. Sess.), § 10, eff. April 14, 1974; 1975, No. 132 (Adj. Sess.), § 3, eff. Feb. 5, 1976; 2003, No. 122 (Adj. Sess.), § 139a; 2013, No. 131 (Adj. Sess.), § 2, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Section heading: Substituted "Policy" for "State welfare policy of the state of Vermont".

Subdiv. (1): Inserted "and child" following "Its social".

Subdiv. (2): Inserted "and child" following "its social" and "and contribute to the rehabilitation and protection of persons of the State" at the end.

Subdiv. (5): Added.

Amendments--2003 (Adj. Sess.). Subdiv. (4): Added the last sentence.

Amendments--1975 (Adj. Sess.). Subdiv. (1): Substituted "and eligible for such assistance and benefits under the provisions of this title" for "and thereby promote the well-being of all the people of the state".

Amendments--1973 (Adj. Sess.). Subdiv. (1): Deleted "care and services" following "benefits".

Subdiv. (2): Deleted "as well as rehabilitative, preventive and protective services" following "maladjustment".

Subdiv. (3): Deleted "care and service" following "benefits".

Subdiv. (4): Deleted "care and service" following "benefits".

Subdiv. (5): Deleted.

Prior law. 33 V.S.A. § 2501.

§ 102. Definitions and construction.

  1. As used in this chapter:
    1. "Aid" means financial assistance.
    2. "Assistance," when not modified by an adjective, means general assistance or public assistance, or both.
    3. "Benefits" means aid or commodities furnished under chapter 17 of this title.
    4. "Commissioner" means the Commissioner for Children and Families.
    5. "Department" means the Department for Children and Families.
    6. "Federal department" or "federal agency" means a department or agency of the United States of America.
    7. "Guardian" means a legal guardian appointed by a Probate Division of the Superior Court or by a court in a divorce or other proceeding or action.
    8. "Public assistance" means aid provided by the Department under Title IV, XVI, or XIX of the Social Security Act.
    9. "Regulation" means a rule or regulation.
    10. [Repealed.]
    11. "Social Security Act" means the federal Social Security Act and regulations promulgated under the Act, as amended at any time.
  2. The laws relating to the Department for Children and Families and its programs shall be construed liberally to carry out the policies stated in this chapter.

    Added 1967, No. 147 , § 1; amended 1973, No. 101 , § 6; 1973, No. 152 (Adj. Sess.), § 11, eff. April 14, 1974; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 68; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2009, No. 156 (Adj. Sess.), § I.36; 2013, No. 131 (Adj. Sess.), § 3, eff. May 20, 2014; 2015, No. 23 , § 152; 2021, No. 20 , § 271.

History

Reference in text. The federal Social Security Act, referred to in subdiv. (a)(11), is codified as 42 U.S.C. § 301 et seq. Titles IV, XVI and XIX of the act, referred to in subdiv.(a)(8), are codified 42 U.S.C. §§ 601 et seq., 1381 et seq., and 1396 et seq., respectively.

Revision note. Substituted "chapter 17 of this title" for "subchapter 1 of chapter 28 of this title" in subdiv.(a)(3) in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Substituted "department of health and human services" for "department of health, education and welfare" in subdiv.(a)(10) in light of transfer of functions and change of titles within federal government. See 20 U.S.C. § 3508.

Amendments--2021 Subdiv. (11): Deleted "rules and" preceding "regulations" and substituted "promulgated under the Act" for "made thereunder".

Amendments--2015. Subdiv. (a)(10): Repealed.

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (a): Act No. 154 substituted "probate division of the superior court" for "probate court" in subdiv. (7).

Subsec. (a): Act No. 156 deleted subdivs. (12) and (13).

Amendments--2005 (Adj. Sess.). Subdivs. (a)(4), (a)(5) and subsec. (b): Substituted "for children and families" for "of prevention, assistance, transition, and health access".

Subdivs. (a)(12) and (a)(13): Added.

Amendments--1999 (Adj. Sess.). Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare" in subdiv. (a)(4) and "department of prevention, assistance, transition, and health access" for "department of social welfare" in subdiv. (a)(5) and subsec. (b).

Amendments--1973 (Adj. Sess.). Section amended generally.

Amendments--1973. Subdiv. (a)(4): Repealed.

Prior law. 33 V.S.A. § 2502.

§ 103. Composition of Department.

The Department for Children and Families, created pursuant to 3 V.S.A. §§ 212 and 3084, shall consist of the Commissioner for Children and Families and all divisions, councils, boards, committees, and offices within the Department.

Added 1967, No. 147 , § 1; amended 1973, No. 101 , § 2; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 69; 2013, No. 131 (Adj. Sess.), § 4, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Substituted "pursuant to 3 V.S.A. §§ 212 and 3084" for "under 3. V.S.A. § 212" following "created" and inserted ", councils, boards, committees," following "and all divisions".

Amendments--2005 (Adj. Sess.). Substituted "for children and families" for "of prevention, assistance, transition, and health access" in two places and "divisions and offices" for "councils and committees".

Amendments--1999 (Adj. Sess.). Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare" and "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare".

Amendments--1973. Omitted "the social welfare board" preceding "and all".

Prior law. 33 V.S.A. § 2503.

Cross References

Cross references. Department of Children and Families within agency of human services, see 3 V.S.A. § 3002.

§ 104. Function and powers of Department.

  1. The Department shall administer all laws specifically assigned to it for administration.
  2. In addition to other powers vested in it by law, the Department may do all of the following:
    1. Provide for the administration of the following programs and services:
      1. aid to the aged, blind, and disabled;
      2. Reach Up financial assistance and support services;
      3. [Repealed.]
      4. federal Supplemental Nutrition Assistance Program benefits;
      5. General Assistance;
      6. medical assistance; and
      7. public assistance programs funded with State general funds or the Temporary Assistance to Needy Families (TANF) block grant.
    2. Cooperate with the appropriate federal agencies in receiving, to the extent available, federal funds in support of programs that the Department administers.
    3. Submit plans and reports, adopt rules, and in other respects comply with the provisions of the Social Security Act that pertain to programs administered by the Department.
    4. Receive and disburse funds that are assigned, donated, or bequeathed to it for charitable purposes or for the benefit of recipients of assistance, benefits, or social services. This subdivision shall not be construed to require the Department to accept funds or trusts when the Commissioner, with the approval of the Governor, considers it in the best interests of the State to refuse them.
    5. Receive in trust and expend, in accordance with the provisions of the trust, funds and property assigned, donated, devised, or bequeathed to it for charitable purposes or for the benefit of recipients of assistance, benefits, or social services. Trust funds accepted by the Department shall be safely invested by the State Treasurer. Real property received in trust may, at the discretion of the Commissioner, be administered by the Department of Buildings and General Services of the Agency of Administration. This subdivision shall not be construed to require the Department to accept funds or trusts when the Commissioner, with the approval of the Governor, considers it in the best interests of the State to refuse them.
    6. Aid and assist in charitable work as in the judgment of the Commissioner will best promote the general welfare of the State.
    7. Visit all institutions, homes, places, and establishments soliciting public support and located in the State that are devoted to or used for the care of needy persons.
    8. Visit all institutions, homes, places, and establishments providing room, board, or care to persons receiving social services or benefits from the Department.
    9. Supervise and control children under its care and custody and provide for their care, maintenance, and education.
  3. The Department for Children and Families, in cooperation with the Department of Corrections, shall have the responsibility to administer a comprehensive program for youthful offenders and children who commit delinquent acts, including utilization of probation services; of a range of community-based and other treatment, training, and rehabilitation programs; and of secure detention and treatment programs when necessary in the interests of public safety, designed with the objective of preparing those children to live in their communities as productive and mature adults.

    Added 1967, No. 147 , § 1; amended 1973, No. 152 (Adj. Sess.), § 12, eff. April 14, 1974; 1983, No. 147 (Adj. Sess.), § 4(a), eff. April 11, 1984; 2013, No. 131 (Adj. Sess.), § 5, eff. May 20, 2014; 2019, No. 128 (Adj. Sess.), § 3; 2021, No. 20 , § 272.

History

Reference in text. The Social Security Act, referred to in subdiv. (b)(3), is codified as 42 U.S.C. § 301 et seq.

Revision note. Reference to "state buildings division of the department of administration" changed to "state buildings division of the agency of administration" in subdiv. (b)(5) to conform to new title and reorganization of state government. See 3 V.S.A. chapter 45.

In subdiv. (b)(5), substituted "department of buildings and general services" for "state buildings department" for purposes of conformity with 1995, No. 148 (Adj. Sess.).

Amendments--2021 Subsec. (b): Inserted "do all of the following" at the end of the intro. para.

Subdiv. (b)(3): Substituted "adopt rules" for "make regulations" and "that" for "which".

Amendments--2019 (Adj. Sess.). Subsec. (c): Deleted ", developed by the Commission on Juvenile Justice established pursuant to 3 V.S.A. § 3085c," following "comprehensive program".

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--1983 (Adj. Sess.) Subdiv. (b)(5): Substituted "state buildings department" for "state buildings division" following "administered by the" in the third sentence.

Amendments--1973 (Adj. Sess.). Subsec. (a): Deleted "the laws in the welfare code, chapter 25 of Title 33, and all other" following "administer".

Subsec. (b): Amended generally.

Prior law. 33 V.S.A. § 2504.

ANNOTATIONS

Cited. Dale v. State of Vermont, 630 F. Supp. 107 (D. Vt.), affirmed, 795 F.2d 1004 (2d Cir. 1986); Levinsky v. Diamond, 151 Vt. 178, 559 A.2d 1073 (1989).

§ 105. Commissioner; appointment, term, duties, and powers.

  1. The Commissioner may exercise the powers and perform duties required for effective administration of the Department, and he or she shall determine the policies of the Department.
  2. In addition to other duties imposed by law, the Commissioner shall:
    1. administer the laws assigned to the Department;
    2. fix standards and adopt rules necessary to administer those laws and for the custody and preservation of records of the Department;
    3. appoint all necessary assistants, prescribe their duties, and adopt rules necessary to ensure that the assistants shall hold merit system status while in the employ of the Department, unless otherwise specifically provided by law.
  3. The Commissioner or the Governor, whenever the federal law so provides, may cooperate with the federal government in providing relief and work relief and community work and training programs in the State.
  4. The Commissioner, with the approval of the Attorney General, may enter into reciprocal agreements with social and child welfare agencies in other states in matters relating to social welfare, children, and families.
  5. The Commissioner shall ensure the provision of services to children and adolescents with a severe emotional disturbance in coordination with the Secretary of Education and the Commissioners of Mental Health and of Disabilities, Aging, and Independent Living in accordance with the provisions of chapter 43 of this title.
  6. Notwithstanding any other provision of law, the Commissioner may delegate to any appropriate employee of the Department any of the administrative duties and powers imposed on him or her by law, with the exception of the duties and powers enumerated in this section. The delegation of authority and responsibility shall not relieve the Commissioner of accountability for the proper administration of the Department.
  7. The Commissioner may publicly disclose findings or information about any case of child abuse or neglect that has resulted in the fatality or near fatality of a child, including information obtained under chapter 49 of this title, unless the State's Attorney or Attorney General who is investigating or prosecuting any matter related to the fatality requests the Commissioner to withhold disclosure, in which case the Commissioner shall not disclose any information until completion of any criminal proceedings related to the fatality or until the State's Attorney or Attorney General consents to disclosure, whichever occurs earlier.

    Added 1967, No. 147 , § 1; amended 1973, No. 101 , § 6; 1983, No. 175 (Adj. Sess.); 2013, No. 131 (Adj. Sess.), § 6, eff. May 20, 2014; 2015, No. 29 , § 11; 2021, No. 20 , § 273.

History

Amendments--2021 Subdivs. (b)(2), (b)(3): Substituted "adopt rules" for "issue regulations".

Amendments--2015. Subsec. (b): Amended generally.

Amendments--2013 (Adj. Sess.). Deleted previously repealed subsec. (a) and subdiv. (a)(4) and redesignated the remaining subparts accordingly, inserted "or she" following "and he" in present subsec. (a), in present subsec. (d) inserted "and child" following "with social" and ", children, and families" at the end, and added subsecs. (e) and (g).

Amendments--1983 (Adj. Sess.). Subsec. (f): Added.

Amendments--1973. Subsec. (a): Repealed.

Prior law. 33 V.S.A. § 2505.

Cross References

Cross references. Procedure for adoption of administrative regulations, see 3 V.S.A. chapter 25.

ANNOTATIONS

1. Rulemaking.

Commissioner of Department of Social Welfare must adopt rules in manner prescribed by Administrative Procedure Act. In re Diel, 158 Vt. 549, 614 A.2d 1223 (1992).

Department of Social Welfare's decision to rescind policy change that would have increased Aid to Needy Families with Children (ANFC) program benefits fell within definition of rulemaking under Administrative Procedure Act (APA) and was invalid because it was not adopted in manner prescribed by APA. In re Diel, 158 Vt. 549, 614 A.2d 1223 (1992).

Cited. Levinsky v. Diamond, 151 Vt. 178, 559 A.2d 1073 (1989), overruled in part, Muzzy v. State (1990) 155 Vt. 279, 583 A.2d 82.

Subchapter 2. General Administrative Provisions

§ 111. Records; restrictions; penalties.

    1. The names of or information pertaining to applicants for or recipients of assistance or benefits, including information obtained under section 112 of this title, shall not be disclosed to anyone, except for the purposes directly connected with the administration of the Department or when required by law. (a) (1)  The names of or information pertaining to applicants for or recipients of assistance or benefits, including information obtained under section 112 of this title, shall not be disclosed to anyone, except for the purposes directly connected with the administration of the Department or when required by law.
    2. Names of or information pertaining to applicants for or recipients of Medicaid shall be subject to the confidentiality provisions set forth in section 1902a of this title.
  1. A person shall not publish, use, disclose, or divulge any of those records for purposes not directly connected with the administration of programs of the Department or contrary to rules adopted by the Commissioner.

    Added 1967, No. 147 , § 1; amended 1969, No. 99 ; 1973, No. 152 (Adj. Sess.), § 13, eff. April 14, 1974; 1975, No. 244 (Adj. Sess.), § 1; 2013, No. 131 (Adj. Sess.), § 7, eff. May 20, 2014; 2015, No. 29 , § 12; 2015, No. 172 (Adj. Sess.), § E.306.8; 2021, No. 20 , § 274.

History

Amendments--2021 Subsec. (b): Substituted "rules adopted" for "regulations issued".

Amendments--2015 (Adj. Sess.). Subsec. (a): Added the subdiv. (1) designation and added subdiv. (2).

Amendments--2015. Subsec. (b): Deleted subdiv. (b)(1) designation and deleted subdiv. (b)(2).

Amendments--2013 (Adj. Sess.). Subdiv. (b)(1): Made a minor stylistic change.

Amendments--1975 (Adj. Sess.). Subsec. (a): Inserted "including information obtained under section 2552 of this title" following "benefits".

Amendments--1973 (Adj. Sess.). Subsec. (a): Deleted "or social services" following "benefits".

Subsec. (c): Repealed.

Amendments--1969. Subsec. (c): Added.

Prior law. 33 V.S.A. § 2551.

ANNOTATIONS

Analysis

1. Disclosure of information.

This section does not authorize disclosure of the names of, or information pertaining to applicants for, or recipients of assistance other than information about issues directly related to the administration of public assistance. 1966-68 Op. Atty. Gen. 183.

2. Evidentiary privilege.

Confidentiality provisions governing social welfare assistance do not create evidentiary privileges. State v. Curtis, 157 Vt. 275, 597 A.2d 770 (1991).

This section does not exhibit an intent to create an evidentiary privilege as to information within the possession of the Department of Social and Rehabilitation Services. In re F.E.F., 156 Vt. 503, 594 A.2d 897 (1991).

3. Effect of disclosure.

District director in child welfare office did not defame plaintiff by communicating the findings of that office to an out-of-state counterpart since the reporting was requested by the court for use in a closed proceeding. Wilkinson ex rel. Wilkinson v. Russell, 973 F. Supp. 437 (D. Vt. 1997), aff'd, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000).

Cited. Levinsky v. Diamond, 151 Vt. 178, 559 A.2d 1073 (1989), overruled in part, Muzzy v. State (1990) 155 Vt. 279, 583 A.2d 82.

§ 112. Banks and agencies to furnish information.

  1. An officer of a financial institution, as described in 8 V.S.A. § 11101(32) , a credit union, or an independent trust company in this State, when requested by the Commissioner, shall furnish the Commissioner information in the possession of the bank or company with reference to any person or his or her spouse who is applying for or is receiving assistance or benefits from the Department.
  2. Any governmental official or agency in the State, when requested by the Commissioner, shall furnish him or her information in the official's or agency's possession with reference to aid given or money paid or to be paid to any person or person's spouse who is applying for or is receiving assistance or benefits from the Department.
  3. The Commissioner of Taxes, when requested by the Commissioner for Children and Families, and unless otherwise prohibited by federal law, shall compare the information furnished by an applicant or recipient of assistance with the State income tax returns filed by such person and shall report his or her findings to the Commissioner for Children and Families. Each application for assistance shall contain a form of consent, executed by the applicant, granting permission to the Commissioner of Taxes to disclose such information to the Commissioner for Children and Families.

    Added 1967, No. 147 , § 1; amended 1975, No. 244 (Adj. Sess.), § 3; 1999, No. 147 (Adj. Sess.), § 4; 2001, No. 73 (Adj. Sess.), § 6, eff. Feb. 2, 2002; 2005, No. 174 (Adj. Sess.), § 70.

History

Amendments--2005 (Adj. Sess.). Subsec. (b): Inserted "or her" following "his" and substituted "person's" for "his" preceding "spouse".

Subsec. (c): Substituted "for children and families" for "of prevention, assistance, transition, and health access" following "commissioner" throughout the subsection and inserted "or her" following "his" in the first sentence.

Amendments--2001 (Adj. Sess.). Subsec. (a): Substituted "financial institution, as described in 8 V.S.A. § 11101(32), a credit union, or an independent trust company" for "national bank, savings bank, trust company, or saving bank and trust company" and substituted "his or her spouse" for "his spouse".

Amendments--1999 (Adj. Sess.). Subsec. (c): Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare" wherever it appeared.

Amendments--1975 (Adj. Sess.). Subsec. (c): Added.

Prior law. 33 V.S.A. § 2552.

Responsibility for costs. 1975, No. 244 (Adj. Sess.), § 5, provided: "All costs and expenses incurred both by the department of taxes and the department of social welfare with respect to any report generated under Sec. 3 of this act [which added subsec. (c) of this section] shall be borne by the department of social welfare."

§ 113. Repealed. 2013, No. 131 (Adj. Sess.), § 8, eff. May 20, 2014.

History

Former § 113. Former § 113, relating to desertion and nonsupport, information from governmental entities and public utilities, was derived from 1967, No. 147 , § 1 and amended by 1997, No. 63 , § 21. For present provisions, see § 4105 of this title.

§ 114. Allocation of payments when appropriation insufficient.

Should the funds available for assistance be insufficient to provide assistance to all those eligible, the amounts of assistance granted in any program or portion thereof shall be reduced equitably, in the discretion of the Commissioner for Children and Families or the Commissioner of Vermont Health Access by rule.

Added 1967, No. 147 , § 1; amended 1971, No. 247 (Adj. Sess.), § 1, eff. April 7, 1972; 2005, No. 174 (Adj. Sess.), § 71; 2009, No. 156 (Adj. Sess.), § I.37.

History

Amendments--2009 (Adj. Sess.) Substituted "commissioner for children and families or the commissioner of Vermont health access" for "commissioner or the director".

Amendments--2005 (Adj. Sess.). Inserted "or the director" following "commissioner" and substituted "rule" for "regulation".

Amendments--1971 (Adj. Sess.). Section amended generally.

Prior law. 33 V.S.A. § 2554.

§ 115. Repealed. 2013, No. 131 (Adj. Sess.), § 9, eff. May 20, 2014.

History

Former § 115. Former § 115, relating to access to financial records of deposit accounts of individuals who owe overdue child support, was derived from 1997, No. 63 , § 22. For present provisions, see § 4111 of this title.

§ 116. State-placed students.

To enable a school district to determine if a student is a State-placed student, as defined in 16 V.S.A. § 11(a)(28) , the Commissioner for Children and Families shall immediately notify the superintendent of schools for the school district educating the student if the parent or parents of a student under the care and custody of the Commissioner move from or into that school district.

Added 2013, No. 131 (Adj. Sess.), § 10, eff. May 20, 2014.

Subchapter 3. Provisions of General Applicability

§ 121. Cancellation of assistance or benefits.

If at any time the Commissioner for Children and Families or the Commissioner of Vermont Health Access has reason to believe that assistance or benefits have been improperly obtained, he or she shall cause an investigation to be made and may suspend assistance or benefits pending the investigation. If on investigation the Commissioner for Children and Families or the Commissioner of Vermont Health Access is satisfied that the assistance or benefits were illegally obtained, he or she shall immediately cancel them. A person having illegally obtained assistance or benefits shall not be eligible for reinstatement until his or her need has been reestablished.

Added 1967, No. 147 , § 1; amended 2005, No. 174 (Adj. Sess.), § 72; 2009, No. 156 (Adj. Sess.), § I.38.

History

Amendments--2009 (Adj. Sess.) Substituted "commissioner for children and families or the commissioner of Vermont health access" for "commissioner or the director" in two places.

Amendments--2005 (Adj. Sess.). Inserted "or the director" following "commissioner" in the first and second sentences, and made gender neutral changes throughout.

Prior law. 33 V.S.A. § 2572.

Cross References

Cross references. Penalties for fraud, see § 141 of this title.

§ 122. Recovery of payments.

  1. The amount of assistance or benefits may be changed or cancelled at any time if the Commissioner for Children and Families or the Commissioner of Vermont Health Access finds that the recipient's circumstances have changed. Upon granting assistance or benefits the Department for Children and Families or the Department of Vermont Health Access shall inform the recipient that changes in his or her circumstances must be promptly reported to the Department.
  2. When on the death of a person receiving assistance it is found that the recipient possessed income or property in excess of that reported to the Department for Children and Families or the Department of Vermont Health Access, up to double the total amount of assistance in excess of that to which the recipient was lawfully entitled may be recovered by the Commissioner for Children and Families or the Commissioner of Vermont Health Access as a preferred claim from the estate of the recipient. The Commissioner for Children and Families or the Commissioner of Vermont Health Access shall calculate the amount of the recovery by applying the legal interest rate to the amount of excess recovery paid, except that the recovery shall be capped at double the excess assistance paid.
  3. When the Commissioner for Children and Families or the Commissioner of Vermont Health Access finds that a recipient of benefits received assistance in excess of that to which the recipient was lawfully entitled, because the recipient possessed income or property in excess of Department standards, the Commissioner for Children and Families or the Commissioner of Vermont Health Access may take actions to recover the overpayment.
  4. In the event of recovery, an amount may be retained by the Commissioner for Children and Families or the Commissioner of Vermont Health Access in a special fund for use in offsetting program expenses and an amount equivalent to the pro rata share to which the United States of America is equitably entitled shall be paid promptly to the appropriate federal agency.

    Added 1967, No. 147 , § 1; 1997, No. 155 (Adj. Sess.), § 20; amended 2005, No. 174 (Adj. Sess.), § 73; 2009, No. 156 (Adj. Sess.), § I.39.

History

Amendments--2009 (Adj. Sess.) Section amended generally.

Amendments--2005 (Adj. Sess.). Subsec. (a): Inserted "or director" following "commissioner", "or her" following "his" and "or office" following "department".

Subsec. (b): Inserted "or office" following "department" and "or director" following "commissioner".

Subsecs. (c) and (d): Inserted "or director" following "commissioner".

Amendments--1997 (Adj. Sess.). In subsec. (b), substituted "up to double" for "double" in the first sentence, added the second sentence, and deleted a provision similar to that added as subsec. (d), and added subsecs. (c) and (d).

Prior law. 33 V.S.A. § 2573.

Cross References

Cross references. Claims against decedents' estates, see 14 V.S.A. chapter 66.

§ 123. Guardian or legal representative.

  1. If the Commissioner finds that an applicant for or recipient of assistance is incapable of taking care of himself or herself or his or her business affairs, the Commissioner may direct the payment of the assistance to a guardian appointed by the Probate Division of the Superior Court.
  2. If the Commissioner finds that an applicant for or recipient of assistance is incapable of prudently attending to his or her business affairs, the Commissioner may direct the payment of the assistance to the legal representative of the person appointed by the Probate Division of the Superior Court.

    Added 1967, No. 147 , § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Amendments--2009 (Adj. Sess.) Substituted "probate division of the superior court" for "probate court" in subsecs. (a) and (b).

Prior law. 33 V.S.A § 2574.

Cross References

Cross references. Petition by Commissioner for appointment of guardian for spendthrift, see 14 V.S.A. § 2684.

§ 124. Inalienability of assistance payments.

All rights to and all monies or orders granted to persons as assistance shall be inalienable by assignment, transfer, attachment, trustee process, execution, or otherwise. In case of bankruptcy, the assistance shall not pass to or through a trustee or other person acting on behalf of creditors.

Added 1967, No. 147 , § 1.

History

Prior law. 33 V.S.A. § 2575.

ANNOTATIONS

Cited. In re Anderson, 70 B.R. 759 (Bankr. D. Vt. 1987).

Subchapter 4. Fuel Assistance Credit Balances

§ 131. Repealed. 1995, No. 158 (Adj. Sess.), § 4, eff. May 10, 1996.

History

Former § 131. Former § 131, relating to fuel assistance and credit balances, was derived from 33 V.S.A. § 2576; 1989, No. 148 (Adj. Sess.), § 2(e); 1989, No. 148 (Adj. Sess.), § 1, and amended by 1989, No. 216 (Adj. Sess.), § 1.

§ 132. Repealed. 2013, No. 131 (Adj. Sess.), § 11, eff. May 20, 2014.

History

Former § 132. Former § 132, relating to remedies; penalty, was derived from 1989, No. 216 (Adj. Sess.), § 2.

Subchapter 5. Prohibited Practices; Penalties

§ 141. Fraud.

  1. A person who knowingly fails, by false statement, misrepresentation, impersonation, or other fraudulent means, to disclose a material fact used to determine whether that person is qualified to receive aid or benefits under a State or federally funded assistance program; or who knowingly fails to disclose a change in circumstances in order to obtain or continue to receive aid or benefits to which he or she is not entitled or in an amount larger than that to which he or she is entitled; or who knowingly aids and abets another person in the commission of any such act shall be punished as provided in section 143 of this title.
  2. A person who knowingly uses, transfers, acquires, traffics, alters, forges, or possesses; or who knowingly attempts to use, transfer, acquire, traffic, alter, forge, or possess; or who knowingly aids and abets another person in the use, transfer, acquisition, traffic, alteration, forgery, or possession of a Supplemental Nutrition Assistance Program benefit card, authorization for the purchase of Supplemental Nutrition Assistance Program benefits, certificate of eligibility for medical services, or State health care program identification card in a manner not authorized by law shall be punished as provided in section 143 of this title.
  3. A person who administers a State or federally funded assistance program who fraudulently misappropriates, attempts to misappropriate, or aids and abets in the misappropriation of a Supplemental Nutrition Assistance Program benefit, authorization for Supplemental Nutrition Assistance Program benefits, a Supplemental Nutrition Assistance Program benefit identification card, certificate of eligibility for prescribed medicine, State health care program identification card, or assistance from any other State or federally funded program with which he or she has been entrusted or of which he or she has gained possession by virtue of his or her position; or who knowingly misappropriates, attempts to misappropriate, or aids or abets in the misappropriation of funds given in exchange for Supplemental Nutrition Assistance Program benefits shall be punished as provided in section 143 of this title.
  4. A person who knowingly files, attempts to file, or aids and abets in the filing of a claim for services to a recipient of benefits under a State or federally funded assistance program for services that were not rendered; or who knowingly files a false claim or a claim for unauthorized items or services under such a program; or who knowingly bills the recipient of benefits under such a program or his or her family for an amount in excess of that provided for by law or regulation; or who knowingly fails to credit the State or its agent for payments received from Social Security, insurance, or other sources; or who in any way knowingly receives, attempts to receive, or aids and abets in the receipt of unauthorized payment as provided herein shall be punished as provided in section 143 of this title.
  5. A person providing service for which compensation is paid under a State or federally funded assistance program who requests, and receives, either actually or constructively, any payment or contribution through a payment, assessment, gift, devise, bequest, or other means, whether directly or indirectly, from either a recipient of assistance from the assistance program or from the family of the recipient shall notify the Commissioner for Children and Families or the Commissioner of Vermont Health Access, on a form provided by him or her, of the amount of the payment or contribution and of such other information as specified by the Commissioner for Children and Families or the Commissioner of Vermont Health Access within 10 days after the receipt of the payment or contribution or, if the payment or contribution is to become effective at some time in the future, within 10 days of the consummation of the agreement to make the payment or contribution. Failure to notify the Commissioner for Children and Families or the Commissioner of Vermont Health Access within the time prescribed is punishable as provided in section 143 of this title.
  6. Repayment of assistance or services wrongfully obtained shall not constitute a defense to or ground for dismissal of criminal charges brought under this section.

    Added 1967, No. 147 , § 1; amended 1973, No. 49 ; 1977, No. 206 (Adj. Sess.), § 1; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 74; 2009, No. 156 (Adj. Sess.), § I.40; 2013, No. 131 (Adj. Sess.), § 12, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Substituted "Supplemental Nutrition Assistance Program benefit" and "Supplemental Nutrition Assistance Program benefits" for "food stamp" and "food stamps" throughout the section, in subsec. (a) substituted "to determine whether that person is qualified" for "in making a determination as to the qualifications of that person" following "material fact used", deleted "under a program" following "to receive", in subsec. (b) substituted "Supplemental Nutrition Assistance Program benefit card" for "food stamp, food stamp identification card" following "possession of a", "State health care program" for "Medicaid" following "medical services, or" and deleted the last sentence, substituted "State health care program" for "Medicaid" following "prescribed medicine" in subsec. (c), and inserted "or her" following "program or his" in subsec. (d).

Amendments--2009 (Adj. Sess.) Subsec. (e): Substituted "commissioner for children and families or the commissioner of Vermont health access" for "commissioner or the director" in three places.

Amendments--2005 (Adj. Sess.). Subsec. (e): Substituted "or director" for "of the department of prevention, assistance, transition, and health access"; and inserted "or her" following "him" and "or director" following "commissioner" in two places.

Amendments--1999 (Adj. Sess.). Subsec. (e): Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare".

Amendments--1977 (Adj. Sess.). Section amended generally.

Amendments--1973. Paragraph (3): Added.

Prior law. 33 V.S.A. § 2581.

Cross References

Cross references. Limitation of prosecution for violation of subsec. (d) of this section, see 13 V.S.A. § 4501.

Cancellation of assistance or benefits, see § 121 of this title.

ANNOTATIONS

Analysis

1. Construction.

Since in enacting subsection (d) of this section, prohibiting submission of a false claim for services to Medicaid recipients, the Legislature omitted use of the word "fraud," that omission, in preference for other language, plainly excluded fraud as an element. State v. Dorn, 145 Vt. 606, 496 A.2d 451 (1985), modified on other grounds, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

Subsection (d) of this section, prohibiting submission of a false claim for services to Medicaid recipients or a claim for unauthorized items or services, expressly criminalizes "knowingly" filing either a false claim, or a claim for unauthorized services, since the word "or" in its phrase, "(a) person . . . who knowingly files a false claim or a claim for unauthorized items or services," distinguishes two distinct kinds of "claims" and divides two separate and independently operative provisions. State v. Dorn, 145 Vt. 606, 496 A.2d 451 (1985), modified on other grounds, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

A person of reasonable intelligence would understand that deliberate overcharges are prohibited by subsection (d) of this section prohibiting filing of false claims for services to Medicaid recipients. State v. Dorn, 145 Vt. 606, 496 A.2d 451 (1985), modified on other grounds, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

A person who filed a claim seeking reimbursement for services to Medicaid recipients for less than his or her usual and customary charge to the public would not have filed a false claim as far as the government is concerned, because the usual and customary charge was in fact at least as much as the reimbursement claimed, with no overcharge to the prejudice of the government. State v. Dorn, 145 Vt. 606, 496 A.2d 451 (1985), modified on other grounds, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

2. Knowledge and intent.

Failure of trial court to charge deliberate overcharging as element of offense of knowingly filing false Medicaid claims and failure of State to prove alleged element did not constitute error. State v. Venman, 151 Vt. 561, 564 A.2d 574 (1989).

Where doctor charged with knowingly filing false Medicaid claims wrote in daily log that patient was referred by another physician and no referral occurred, jury could have concluded that doctor knew what was meant by "consultation" and knowingly billed Medicaid program for consultation where none occurred. State v. Venman, 151 Vt. 561, 564 A.2d 574 (1989).

Requirement in subsection (d) of this section, prohibiting submission of a false claim for services to Medicaid recipients, of knowing falsity means that the State must establish defendant's guilty knowledge beyond a reasonable doubt. State v. Dorn, 145 Vt. 606, 496 A.2d 451 (1985), modified on other grounds, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

At trial of pharmacist for claiming Medicaid reimbursement that exceeded his usual and customary charge to the general public, a jury instruction on fraudulent intent was not required. State v. Dorn, 145 Vt. 606, 496 A.2d 451 (1985), modified on other grounds, Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

Evidence introduced by State established occurrence of events affecting welfare recipient's right to benefits, including receipt of support checks from her husband after they were assigned to Department of Social Welfare in exchange for supplemental benefits, as well as her failure to promptly disclose such events to Department, and was sufficient to support guilty verdict on charge that recipient had knowledge of occurrence of event affecting her rights to benefits under welfare laws, and in failing to promptly disclose such event was intending to fraudulently secure payment in a greater amount than was due. State v. Daigle, 136 Vt. 178, 385 A.2d 1115 (1978).

Where welfare recipient maintained that because of her misunderstanding of effect of assignment of her support checks to Department of Social Welfare and, consequently, her duty to turn over to Department support checks subsequently received by her, she had neither knowledge of occurrence of any event affecting her rights to benefits, nor intent fraudulently to secure payment in a greater amount than was due, it was reversible error for trial court to instruct jury that it should consider whether recipient's alleged misunderstanding was reasonable, allowing court to substitute unreasonable lack of knowledge for actual knowledge. State v. Daigle, 136 Vt. 178, 385 A.2d 1115 (1978).

Cited. State v Phillips, 142 Vt. 283, 455 A.2d 325 (1982); State v. Chenette, 151 Vt. 237, 560 A.2d 365 (1989); State v. Riva, 145 Vt. 15, 481 A.2d 1060 (1984).

§ 142. Bringing needy person into the State.

  1. Any person who knowingly brings or causes to be brought a needy person from out of the state into this State for the purpose of securing assistance for the needy person or making him or her a public charge, shall be obligated to support the needy person at his or her own expense as long as the needy person or persons dependent on the needy person remain in the State.
  2. The Commissioner may bring a civil action on this statute to enforce support of the needy person and his or her dependents.  In the action, the court may make an order, which shall be subject to change by the court from time to time as the circumstances require, directing the defendant to pay a certain sum periodically to the Department for the benefit of the needy person and his or her dependents residing in the State.  The court may punish for violation of the order as for contempt.

    Added 1967, No. 147 , § 1.

History

Prior law. 33 V.S.A. § 2582.

Cross References

Cross references. Contempt, see 12 V.S.A. chapter 5.

§ 143. General penalty.

  1. A person who knowingly violates a provision of this title for which no penalty is specifically provided shall:
    1. if the assistance or benefits obtained pursuant to a single fraudulent scheme or a course of conduct are in violation of subsection 141(a) or (b) of this title involving $1,000.00 or less, be fined not more than the amount of assistance or benefits wrongfully obtained or be imprisoned not more than one year, or both;
    2. if the assistance or benefits obtained pursuant to a single fraudulent scheme or course of conduct are in violation of subsection (a) or (b) of section 141 of this title and involve more than $1,000.00, be fined not more than an amount equal to the assistance or benefits wrongfully obtained or be imprisoned not more than three years, or both; or
    3. if the violation is under subsection (c), (d), or (e) of section 141 of this title, be fined up to $1,000.00 or up to an amount equal to twice the amount of assistance, benefits, or payments wrongfully obtained, or be imprisoned for not more than 10 years, or both.
  2. If the person convicted is receiving assistance, benefits, or payments, the Commissioner for Children and Families or the Commissioner of Vermont Health Access may recoup the amount of assistance or benefits wrongfully obtained by reducing the assistance, benefits, or payments periodically paid to the recipient, as limited by federal law, until the amount is fully recovered.
  3. If a provider of services is convicted of a violation of subsection 141(d) or (e) of this title, the Commissioner of Vermont Health Access shall, within 90 days of the conviction, suspend the provider from further participation in the medical assistance program administered under Title XIX of the Social Security Act for a period of four years. The suspension required by this subsection may be waived by the Secretary of Human Services only upon a finding that the recipients served by the convicted provider would suffer substantial hardship through a denial of medical services that could not reasonably be obtained through another provider.

    Added 1967, No. 147 , § 1; amended 1977, No. 206 (Adj. Sess.), § 2; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 75; 2009, No. 156 (Adj. Sess.), § I.41; 2021, No. 20 , § 275.

History

Reference in text. Title XIX of the Social Security Act, referred to in subsec. (c), is codified as 42 U.S.C. § 1396 et seq.

Amendments--2021 Subsec. (a): Amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "commissioner for children and families or the commissioner of Vermont health access" for "commissioner or the director" and inserted "assistance" preceding "benefits".

Subsec. (c): Substituted "commissioner of Vermont health access" for "director".

Amendments--2005 (Adj. Sess.). Subsec. (b): Inserted "or director" following "commissioner".

Subsec. (c): Substituted "subsection 141(d) or (e)" for "subsections (d) or (e) of section 141", "director" for "commissioner of prevention, assistance, transition, and health access", and "Social Security Act" for "social security act".

Amendments--1999 (Adj. Sess.). Subsec. (c): Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare".

Amendments--1977 (Adj. Sess.). Section amended generally.

Prior law. 33 V.S.A. § 2583.

ANNOTATIONS

1. Constitutionality.

Potential punishment of ten years in jail for each count of multi-count prosecution for knowingly filing false claims with State Medicaid program was not grossly disproportionate to offense; comparable federal crime was felony, misdemeanor penalties were found by Congress to be inadequate deterrents, maximum penalties for Medicaid fraud in other states were similar, and some penalties for comparable Vermont crimes were felonies. State v. Venman, 151 Vt. 561, 564 A.2d 574 (1989).

Cited. State v. Phillips, 142 Vt. 283, 455 A.2d 325 (1982); State v. Dorn, 145 Vt. 606, 496 A.2d 451 (1985).

§ 143a. Civil remedies.

  1. A person who violates subsection 141(c), (d), or (e) of this title with actual knowledge may be subject to a civil suit by the Attorney General for:
    1. restitution of the amount of assistance, benefits, or payments wrongfully obtained;
    2. interest; and
    3. a civil penalty of up to three times the amount of the wrongfully obtained assistance, benefits, or payments; or $500.00 per false claim; or $500.00 for each false document submitted in support of a false claim, whichever is greatest.
  2. The remedies provided in this section shall be in addition to any other remedies provided by law.
  3. The right to a jury trial shall attach to actions under this section.

    Added 2003, No. 147 (Adj. Sess.), § 1.

§ 143b. Education and information.

By January 1, 2005, the Department of Vermont Health Access shall issue rules establishing a procedure for health care providers enrolled in State and federally funded medical assistance programs to obtain advisory opinions regarding coverage and reimbursement under those programs. Each advisory opinion issued by the Department of Vermont Health Access shall be binding on that Department and the party or parties requesting the opinion only with regard to the specific questions posed in the opinion, the facts and information set forth in it, and the statutes and rules specifically noted in the opinion.

Added 2003, No. 147 (Adj. Sess.), § 2; amended 2005, No. 174 (Adj. Sess.), § 76; 2009, No. 33 , § 65; 2009, No. 156 (Adj. Sess.), § I.42.

History

Revision note. Substituted "By January 1, 2005" for "Within six months of the effective date of section 143a of this title" in light of July 1, 2004 effective date of section.

Amendments--2009 (Adj. Sess.) Substituted "department" for "office" preceding "of Vermont health access" and "department of Vermont health access" for "office" and "that department" for "the office".

Amendments--2009. Deleted the subsec. (a) designation; substituted "state and federally funded" for "state- and federally-funded"; and deleted subsec. (b).

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "office of Vermont" for "department of prevention, assistance, transition, and", and "office" for "department".

Subsec. (b): Substituted "office of Vermont" for "department of prevention, assistance, transition, and".

§ 144. Statutory construction.

  1. Section 143 of this title shall not preclude prosecution under 13 V.S.A. § 1801 , 1802, or 2002 when the alleged violation involves forging an economic assistance check or where duplicate economic assistance checks have been wrongfully negotiated during any one welfare period.
  2. Section 143 of this title shall not preclude prosecution under any other title or sections of this title when the alleged violation is under subsection 141(c) or (d) of this title.

    Added 1977, No. 206 (Adj. Sess.), § 3; amended 2021, No. 20 , § 276.

History

Amendments--2021 Subsec. (a): Substituted "economic assistance" for "welfare" twice.

Prior law. 33 V.S.A. § 2584.

Subchapter 6. Licensing and Registration

§ 151. Licensing and registration; violations.

This subchapter shall apply to all licenses, registrations, and applications for licenses and registrations that the Commissioner or the Department may issue or grant unless otherwise specifically provided.

  1. The Commissioner shall adopt rules governing applications for and issuance, revocation, term, and renewal of licenses and registrations. In the rules, the Commissioner may prescribe standards and conditions to be met, records to be kept, and reports to be filed. Licenses and registration shall be for a term of one year from issuance unless otherwise prescribed by rule.
  2. Premises covered by a license or registration may be visited and inspected by the Department at reasonable hours. A person who accepts a license or registration shall permit visits and inspections and examinations of the records he or she is required to keep.
  3. A license or registration may be revoked for cause after hearing and may be suspended in situations that immediately imperil the health, safety, or well-being of persons in the care of the licensee or registrant.
  4. Before a license is granted, the Department shall visit and inspect the premises for which the license is requested and make further inquiry and investigation as the Commissioner may direct. Before a family child care home registration is granted, the Department shall make inquiry and investigation. Inquiry and investigation may include a visit to and inspection of the premises for which the registration is requested. Further inquiry and investigation may be made as the Commissioner may direct.
  5. Whenever the Attorney General has reason to believe that a facility required by the Commissioner to be licensed or registered is being operated without such license or registration, the Attorney General may bring an action for equitable relief in the name of the State against the operator of such facility to restrain such operation. The action may be brought in the Superior Court of the county in which the facility is located. The court is authorized to grant equitable relief to restrain and prevent such operation.
  6. Any person who violates the terms of an injunction or restraining order issued under subdivision (5) of this section shall forfeit and pay to the State a civil penalty of not more than $100.00 for each violation. In such cases, the Attorney General acting in the name of the State may petition for recovery of such civil penalty.
  7. Whenever the Department determines that a licensed child care facility or registered family child care home has violated a health or safety rule, the facility or home shall post the Department's notice of violation in a conspicuous place in the facility or home. In the case of a serious violation, as defined by the Department by rule, the facility or home shall also notify by mail a person responsible for the welfare of each child attending that facility or home. A serious violation shall include violation of group size and staffing requirements and any violation involving a situation that immediately imperils the health, safety, or well-being of persons in the care of the licensee or registrant.

    Added 2013, No. 131 (Adj. Sess.), § 13, eff. May 20, 2014; amended 2021, No. 20 , § 277.

History

Amendments--2021 Subdiv. (1): In the second sentence, substituted "rules" for "regulations" and "the Commissioner" for "he or she"; and substituted "rule" for "regulation" in the last sentence.

Educational and experiential variance. 2021, No. 74 , § E.318 provides: "(a) For individuals operating or employed in a registered family child care home or as a director or teacher associate in a center-based program for 10 or more years prior to September 1, 2016, the Commissioner for Children and Families or designee may issue a variance to the Child Development Division's rule regarding educational and experiential requirements to allow an individual to maintain employment in that same role regardless of whether the family child care provider, family child care assistant, director, or teacher associate intends to attain the otherwise necessary educational requirements. To be eligible for a variance, the family child care provider, family child care assistant, director, or teacher associate shall:

"(1) work continuously in a regulated program with a full license in good standing; and

"(2) meet the Division's educational and experiential requirements in place prior to the adoption of the new rule, which was effective beginning on September 1, 2016.

"(b) The Commissioner or designee shall review any violation occurring in a regulated program where a family childcare provider, family child care assistant, director, or teacher associate is under variance and may revoke the variance granted by this section depending upon the seriousness and circumstances of the violation.

"(c) Any variance granted under this section shall be terminated on July 1, 2024, and extensions shall not be granted beyond that date."

§ 152. Access to records.

  1. The Commissioner may obtain from the Vermont Crime Information Center the record of convictions of any person to the extent required by law or the Commissioner has determined by rule that such information is necessary to regulate a facility or individual subject to regulation by the Department or to carry out the Department's child protection obligations under chapters 49-59 of this title. The Commissioner shall first notify the person whose record is being requested.
  2. The owner or operator of a facility licensed or registered by the Department may ask the Commissioner for the record of convictions and the record of substantiated reports of child abuse of a current employee or a person to whom the owner or operator has given a conditional offer of employment. The request shall be in writing and shall be accompanied by a release signed by the current or prospective employee. The owner or operator shall inform the current or prospective employee that he or she has the right to appeal the accuracy and completeness of the record. Upon receiving a request under this subsection, the Commissioner shall ask the Vermont Crime Information Center for the record of convictions of the current or prospective employee.
  3. If the person has a record of convictions, the Commissioner shall provide the owner or operator with a copy of the record. If the person has a record of substantiated reports of child abuse, the Commissioner shall inform the requesting owner or operator that such record exists.
  4. Information released to an owner or operator under this section shall not be released or disclosed by the owner or operator to any other person. Release or disclosure of such information by an owner or operator may result in the loss of the license or registration.
  5. As used in this section:
    1. "Commissioner" means the Commissioner for Children and Families or the Commissioner's designee.
    2. "Employee" shall include volunteers.
    3. "Substantiated reports of child abuse" means reports of child abuse substantiated under section 4915 of this title.
    4. "Volunteer" means an individual who, without compensation, provides services through a public or private organization.

      Added 2013, No. 131 (Adj. Sess.), § 13, eff. May 20, 2014; amended 2015, No. 60 , § 12.

History

Amendments--2015. Subsec. (a): Inserted "required by law or" following "to the extent" and "or to carry out the Department's child protection obligations under chapters 49 - 59 of this title" following "subject to regulation by the Department".

CHAPTER 3. DEPARTMENT FOR CHILDREN AND FAMILIES

Subchapter 1. General Provisions

History

Amendments--2007 (Adj. Sess.) 2007, No. 136 (Adj. Sess.), § 1, designated the existing provisions of this chapter, composed of sections 301-311, as subchapter 1 and added the heading for that subchapter.

§§ 301-307. Repealed. 2013, No. 131 (Adj. Sess.), § 14, eff. May 20, 2014.

History

Former §§ 301-307. Former § 301, relating to departmental services policy, was derived from 1973, No. 152 (Adj. Sess.), § 28 and amended by 2007, No. 172 (Adj. Sess.), § 8.

Former § 302, relating to definitions, was derived from 1973, No. 152 (Adj. Sess.), § 28 and amended by 2007, No. 172 (Adj. Sess.), § 8 and 2009, No. 154 (Adj. Sess.), § 238a.

Former § 303, relating to composition of Department, was derived from 1973, No. 152 (Adj. Sess.), § 28 and amended by 1987, No. 205 (Adj. Sess.), § 3 and 2007, No. 172 (Adj. Sess.), § 8.

Former § 304, relating to Commissioner; appointment, term, duties, and powers, was derived from 1973, No. 152 (Adj. Sess.), § 28 and amended by 1987, No. 264 (Adj. Sess.), § 15; 1989, No. 187 (Adj. Sess.), § 5; and 2007, No. 172 (Adj. Sess.), § 8.

Former § 305, relating to duties of Department, was derived from 1973, No. 152 (Adj. Sess.), § 28 and amended by 1975, No. 254 (Adj. Sess.), § 164; 1983, No. 130 (Adj. Sess.), § 5; and 1989, No. 219 (Adj. Sess.), §§ 8, 12.

Former § 306, relating to administrative provisions, was derived from 1973, No. 152 (Adj. Sess.), § 28 and amended by 1981, No. 171 (Adj. Sess.), § 1; 1989, No. 295 (Adj. Sess.), § 6; 1997, No. 81 (Adj. Sess.), § 1; 2005, No. 174 (Adj. Sess.), § 77; 2007, No. 172 (Adj. Sess.), § 8; and 2009, No. 1 , § 50.

Former § 307, relating to Division of Child Development; duties, was derived from 1987, No. 205 (Adj. Sess.), § 4 and amended by 2007, No. 172 (Adj. Sess.), § 8.

For present provisions, see § 3501 of this title.

Annotations From Former § 706

1. Due process.

Under this section and section 2852 (now § 3502) of this title, registered operators of family day care centers have a property interest in continued registration which is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Gour v. Morse, 652 F. Supp. 1166 (D. Vt. 1987).

While due process does not require that the Department hold a full-blown evidentiary hearing before revoking a license under subsection (b) of this section, it does require that the Department provide licensees whose registrations it intends to revoke with oral or written notice of the charges against them, an explanation of the Department's evidence, and an opportunity to present reason, even if only in writing, why the proposed action should not be taken. Gour v. Morse, 652 F. Supp. 1166 (D. Vt. 1987).

2. Confidentiality.

Confidentiality provisions governing social welfare assistance do not create evidentiary privileges. State v. Curtis, 157 Vt. 275, 597 A.2d 770 (1991).

3. Immunity.

The licensing and inspection of day-care facilities are inherently governmental functions, the primary purpose of which is to enforce compliance with the law, not to render services to the facilities, which functions find no private analog or duty of care in the common law. Accordingly, under the Vermont Tort Claims Act plaintiffs' action for the wrongful death of their son, who died when he became entangled in a curtain cord while in his crib at a licensed facility, was barred. Lafond v. Department of Social & Rehabilitation Servs., 167 Vt. 407, 708 A.2d 919 (1998).

District director in a child welfare office was protected by qualified immunity in her communications with out-of-state counterpart regarding alleged child sexual abuse because the communication was ordered by the court and the director acted in good faith. Wilkinson ex rel. Wilkinson v. Russell, 973 F. Supp. 437 (D. Vt. 1997), aff'd, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000).

Cited. In re F.E.F., 156 Vt. 503, 594 A.2d 897 (1991).

§ 308. Repealed. 2009, No. 135 (Adj. Sess.), § 26(17)(A).

History

Former § 308. Former § 308, relating to the child care advisory board, was derived from 1987, No. 205 (Adj. Sess.), § 5 and amended by 2005, No. 174 (Adj. Sess.), § 78 and 2007, No. 172 (Adj. Sess.), § 8.

§§ 309-311. Repealed. 2013, No. 131 (Adj. Sess.), § 14, eff. May 20, 2014.

History

Former §§ 309-311. Former § 309, relating to access to records, was derived from 1991, No. 159 (Adj. Sess.), § 2 and amended by 2001, No. 135 (Adj. Sess.), § 14. For present provisions see § 152 of this title.

Former § 310, relating to State-placed students, was derived from 1995, No. 157 (Adj. Sess.), § 20. For present provisions see § 116 of this title.

Former § 311, relating to delinquent child services; purpose and responsibility, was derived from 1997, No. 33 , § 1 and amended by 2001, No. 142 (Adj. Sess.), § 118c and 2007, No. 172 (Adj. Sess.), § 8.

Subchapter 2. Sexual Assault Nurse Examiners

§§ 321-324. Repealed. 2013, No. 131 (Adj. Sess.), § 14, eff. May 20, 2014.

History

Former §§ 321-324. Former § 321, relating to definitions, was derived from 2007, No. 136 (Adj. Sess.), § 2.

Former § 322, relating to SANE Board, was derived from 2007, No. 136 (Adj. Sess.), § 2.

Former § 323, relating to SANE Program clinical coordinator, was derived from 2007, No. 136 (Adj. Sess.), § 2.

Former § 324, relating to SANE Board; duties, was derived from 2007, No. 136 (Adj. Sess.), § 2.

For present provisions on sexual assault nurse examiners, see 13 V.S.A. chapter 167, subchapter 5.

CHAPTER 4. DEPARTMENT OF VERMONT HEALTH ACCESS

Sec.

§ 401. Composition of Department.

The Department of Vermont Health Access, created under 3 V.S.A. § 3088 , shall consist of the Commissioner of Vermont Health Access, the Medical Director, and all divisions within the Department, including the Divisions of Managed Care; Health Reform; the Vermont Health Benefit Exchange; and Medicaid Policy, Fiscal, and Support Services.

Added 2009, No. 156 (Adj. Sess.), § I.79; amended 2011, No. 48 , § 5; 2011, No. 171 (Adj. Sess.), § 36, eff. May 16, 2012.

History

Amendments--2011 (Adj. Sess.). Deleted "a health care eligibility unit" following "the medical director" and "care" preceding "reform".

Amendments--2011. Inserted ", a health care eligibility unit;" following "director" and "the Vermont health benefit exchange;" following "reform;".

§ 402. Medicaid and Exchange Advisory Committee.

  1. A Medicaid and Exchange Advisory Committee is created for the purpose of advising the Commissioner of Vermont Health Access with respect to policy development and program administration for the Vermont Health Benefit Exchange, Medicaid, and Medicaid-funded programs, consistent with the requirements of federal law.
    1. The Commissioner of Vermont Health Access shall appoint members of the Advisory Committee established by this section, who shall serve staggered three-year terms. The total membership of the Advisory Committee shall be at least 22 members. The Commissioner may remove members of the Committee who fail to attend three consecutive meetings and may appoint replacements. The Commissioner may reappoint members to serve more than one term. (b) (1)  The Commissioner of Vermont Health Access shall appoint members of the Advisory Committee established by this section, who shall serve staggered three-year terms. The total membership of the Advisory Committee shall be at least 22 members. The Commissioner may remove members of the Committee who fail to attend three consecutive meetings and may appoint replacements. The Commissioner may reappoint members to serve more than one term.
      1. The Commissioner of Vermont Health Access shall appoint one representative of health insurers licensed to do business in Vermont to serve on the Advisory Committee. The Commissioner of Health shall also serve on the Advisory Committee. (2) (A) The Commissioner of Vermont Health Access shall appoint one representative of health insurers licensed to do business in Vermont to serve on the Advisory Committee. The Commissioner of Health shall also serve on the Advisory Committee.
      2. Of the remaining members of the Advisory Committee, one-quarter of the members shall be from each of the following constituencies:
        1. beneficiaries of Medicaid or Medicaid-funded programs;
        2. individuals, self-employed individuals, health insurance brokers and agents, and representatives of businesses eligible for or enrolled in the Vermont Health Benefit Exchange;
        3. advocates for consumer organizations; and
        4. health care professionals and representatives from a broad range of health care professionals.
    2. Members whose participation is not supported through their employment or association shall receive per diem compensation pursuant to 32 V.S.A. § 1010 and reimbursement of travel expenses. In addition, members who are eligible for Medicaid or who are enrolled in a qualified health benefit plan in the Vermont Health Benefit Exchange and whose income does not exceed 300 percent of the federal poverty level shall also receive reimbursement of expenses, including costs of child care, personal assistance services, and any other service necessary for participation in the Advisory Committee and approved by the Commissioner.
    1. The Advisory Committee shall have an opportunity to review and comment on Agency policy initiatives pertaining to quality improvement initiatives and to health care benefits and eligibility for individuals receiving services through Medicaid, programs funded with Medicaid funds under a Section 1115 waiver, or the Vermont Health Benefit Exchange. It also shall have the opportunity to comment on proposed rules prior to commencement of the rulemaking process pursuant to 3 V.S.A. chapter 25 and on waiver or waiver amendment applications prior to submission to the Centers for Medicare and Medicaid Services. (c) (1)  The Advisory Committee shall have an opportunity to review and comment on Agency policy initiatives pertaining to quality improvement initiatives and to health care benefits and eligibility for individuals receiving services through Medicaid, programs funded with Medicaid funds under a Section 1115 waiver, or the Vermont Health Benefit Exchange. It also shall have the opportunity to comment on proposed rules prior to commencement of the rulemaking process pursuant to 3 V.S.A. chapter 25 and on waiver or waiver amendment applications prior to submission to the Centers for Medicare and Medicaid Services.
    2. Prior to the annual budget development process, the Department of Vermont Health Access shall engage the Advisory Committee in setting priorities, including consideration of scope of benefits, beneficiary eligibility, health care professional reimbursement rates, funding outlook, financing options, and possible budget recommendations.
    1. The Advisory Committee shall make policy recommendations on proposals of the Department of Vermont Health Access to the Department, the Green Mountain Care Board, the Health Reform Oversight Committee, the Senate Committee on Health and Welfare, and the House Committees on Health Care and on Human Services. When the General Assembly is not in session, the Commissioner shall respond in writing to these recommendations, a copy of which shall be provided to the members of each of the legislative committees of jurisdiction and to the Green Mountain Care Board. (d) (1)  The Advisory Committee shall make policy recommendations on proposals of the Department of Vermont Health Access to the Department, the Green Mountain Care Board, the Health Reform Oversight Committee, the Senate Committee on Health and Welfare, and the House Committees on Health Care and on Human Services. When the General Assembly is not in session, the Commissioner shall respond in writing to these recommendations, a copy of which shall be provided to the members of each of the legislative committees of jurisdiction and to the Green Mountain Care Board.
    2. During the legislative session, the Commissioner shall provide the Advisory Committee at regularly scheduled meetings with updates on the status of policy and budget proposals.
  2. The Commissioner shall convene the Advisory Committee at least 10 times during each calendar year. If at least one-third of the members of the Advisory Committee so choose, the members may convene up to four additional meetings per calendar year on their own initiative by sending a request to the Commissioner. The Department shall provide the Committee with staffing and independent technical assistance as needed to enable it to make effective recommendations.
  3. A majority of the members of the Committee shall constitute a quorum, and all action shall be taken upon a majority vote of the members present and voting.

    Added 2011, No. 48 , § 7, eff. July 1, 2012; amended 2011, No. 171 (Adj. Sess.), § 35b; 2021, No. 20 , § 278.

History

Reference in text. The Medicaid Section 1115 waiver, referred to in subdiv. (c)(1), is authorized pursuant to Section 1115 of the Social Security Act, which is codified as 42 U.S.C. § 1315.

2012. In subdiv. (d)(1), substituted "health care oversight committee" for "health access oversight committee" in accordance with 2011, No. 171 (Adj. Sess.), § 41c.

Amendments--2021 Subdiv. (d)(1): Substituted "Health Reform Oversight Committee" for "Health Care Oversight Committee".

Amendments--2011 (Adj. Sess.). Subdiv. (b)(1): Added "at least” in the second sentence.

Subdiv. (b)(2)(B)(ii): Added "health insurance brokers and agents", and deleted "small" preceding "businesses".

§ 403. Financial institutions to furnish information.

  1. As used in this section:
    1. "Bank" shall have the same meaning as in 8 V.S.A. § 11101 .
    2. "Broker-dealer" shall have the same meaning as in 9 V.S.A. § 5102 .
    3. "Credit union" shall have the same meaning as in 8 V.S.A. § 30101 .
    4. "Financial institution" means any financial services provider, including a bank, credit union, broker-dealer, investment advisor, mutual fund, or investment company.
    5. "Investment advisor" shall have the same meaning as in 9 V.S.A. § 5102 .
    6. "Mutual fund" shall have the same meaning as in 8 V.S.A. § 3461 .
  2. A financial institution, when requested by the Commissioner of Vermont Health Access, shall furnish to the Commissioner or to an agent of the Department of Vermont Health Access information in the possession of the financial institution with reference to any person or his or her spouse who is applying for or is receiving assistance or benefits from the Department of Vermont Health Access. The Department of Vermont Health Access shall issue instructions to the financial institution detailing the nature of the request and the information necessary to satisfy the request.
  3. A financial institution shall not be subject to criminal or civil liability for actions taken in accordance with subsection (b) of this section.

    Added 2017, No. 210 (Adj. Sess.), § 6, eff. June 1, 2018.

§ 404. State agencies to furnish information.

  1. Any governmental official or agency in the State, when requested by the Department of Vermont Health Access, shall furnish to the Department information in the official's or agency's possession with reference to aid given or money paid or to be paid to any person or person's spouse who is applying for or is receiving assistance or benefits from the Department of Vermont Health Access.
  2. The Commissioner of Taxes, when requested by the Commissioner of Vermont Health Access, and unless otherwise prohibited by federal law, shall compare the information furnished by an applicant or recipient of assistance with the State income tax returns filed by such person and shall report his or her findings to the Commissioner of Vermont Health Access. Each application for assistance shall contain a form of consent, executed by the applicant, granting permission to the Commissioner of Taxes to disclose such information to the Commissioner of Vermont Health Access.
  3. On the first day of each month, each unit of the Superior Court shall provide to the Commissioner of Vermont Health Access a list of all estates, including testate, intestate, and small estates, opened during the previous calendar month within the jurisdiction of that unit's Probate Division. The list shall contain the following information for each estate:
    1. the decedent's full name;
    2. the decedent's date of birth;
    3. the decedent's date of death;
    4. the docket number;
    5. the date on which the estate was opened; and
    6. the full name and contact information for the executor or administrator or his or her legal representative.

      Added 2017, No. 210 (Adj. Sess.), § 8, eff. June 1, 2018 (subsec. (c) eff. October 1, 2018).

CHAPTER 5. DEPARTMENT OF DISABILITIES, AGING, AND INDEPENDENT LIVING

Sec.

History

Amendments--2013 (Adj. Sess.). Chapter heading: Act No. 131, § 15, inserted "Department of" and deleted "Programs" at the end.

Amendments--2005 (Adj. Sess.). 2005, No. 174 (Adj. Sess.), § 79, inserted "Disabilities," preceding "Aging" and substituted "Independent Living" for "Disabilities" in the chapter heading.

Cross References

Cross references. Home care programs, see chapter 63 of this title.

Abuse, neglect, and exploitation of vulnerable adults, see chapter 69 of this title.

§ 501. Disabilities, aging, and independent living policy.

  1. It is the policy of the State of Vermont that all older Vermonters and Vermonters with disabilities should:
    1. be able to live as independently as they choose and as their personal circumstances permit;
    2. be able to receive services and benefits that they need and to which they are entitled by law;
    3. be able to be full and active participants in the life of their communities, including competitive employment consistent with their abilities and interests; and
    4. be protected against unlawful and unnecessary restriction.
  2. The programs of the Department of Disabilities, Aging, and Independent Living shall be administered in a manner consistent with this policy.
  3. The laws pertaining to the Department of Disabilities, Aging, and Independent Living and its programs shall be construed liberally to carry out the policies stated in this section.

    Added 1989, No. 219 (Adj. Sess.), § 3; amended 2005, No. 174 (Adj. Sess.), § 79.

History

Codification. This section was originally enacted as 33 V.S.A. § 3731 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2005 (Adj. Sess.). Section heading: Substituted "Disabilities, aging, and independent living" for "Aging and disabilities".

Subsecs. (b), (c): Substituted "department of disabilities, aging, and independent living" for "department of aging and disabilities".

§ 502. Definitions.

As used in this chapter:

  1. "Adult foster care" means provision of 24-hour home care services for one or two adult persons with a disability in the residence of the person providing the home care services.
  2. "Americans with Disabilities Act" means the federal Americans with Disabilities Act of 1990 and regulations promulgated under the Act, as amended at any time.
  3. "Commissioner" means the Commissioner of Disabilities, Aging, and Independent Living.
  4. "Department" means the Department of Disabilities, Aging, and Independent Living.
  5. "Home care services" include room, board, safety services, household services, and any specialized services to meet the unique needs of the individual.
  6. "Older Americans Act" means the federal Older Americans Act of 1965 and regulations promulgated under the Act, as amended at any time.
  7. "Older persons" means individuals who have attained the age of 60 years.
  8. "Persons with disabilities" means individual Vermonters who have functional limitations by virtue of physical, psychiatric, cognitive, or psychological conditions.
  9. "Rehabilitation Act" means the federal Rehabilitation Act of 1973 and regulations promulgated under the Act, as amended at any time.
  10. "Social Security Act" means the federal Social Security Act and regulations promulgated under the Act, as amended at any time.

    Added 1989, No. 219 (Adj. Sess.), § 3; amended 2005, No. 174 (Adj. Sess.), § 79; 2007, No. 37 , § 1; 2013, No. 131 (Adj. Sess.), § 16, eff. May 20, 2014; 2021, No. 20 , § 279.

History

Reference in text. The Americans with Disabilities Act of 1990, referred to in subdiv. (2), is codified as 42 U.S.C. § 12101 et seq.

The Older Americans Act of 1965, referred to in subdiv. (6), is codified as 42 U.S.C. § 3001 et seq.

The Rehabilitation Act of 1973, referred to in subdiv. (9), is codified as 29 U.S.C. § 701 et seq.

The Social Security Act, referred to in subdiv. (10), is codified as 42 U.S.C. § 301 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3732 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2021 Subdivs. (2), (6), (9), (10): Deleted "and rules" preceding "and regulations"; and substituted "promulgated under the Act" for "made thereunder".

Amendments--2013 (Adj. Sess.). Subdivs. (7) and (8): Substituted "means" for "mean".

Amendments--2007. Section amended generally.

Amendments--2005 (Adj. Sess.). Subdiv. (2): Substituted "commissioner of disabilities, aging, and independent living" for "commissioner of aging and disabilities".

Subdiv. (3): Substituted "department of disabilities, aging, and independent living" for "department of aging and disabilities".

§ 503. Composition of Department.

The Department, created pursuant to 3 V.S.A. § 3085a , shall consist of the Commissioner of Disabilities, Aging, and Independent Living, the Advisory Board established under section 505 of this title, and all divisions and units of the Department, including the Division for the Blind and Visually Impaired and the Division of Vocational Rehabilitation.

Added 1989, No. 219 (Adj. Sess.), § 3; amended 2005, No. 174 (Adj. Sess.), § 79.

History

Codification. This section was originally enacted as 33 V.S.A. § 3733 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2005 (Adj. Sess.). Substituted "commissioner of disabilities, aging, and independent living" for "commissioner of aging and disabilities" and added "and the division of vocational rehabilitation" following "impaired".

§ 504. Duties of Department.

  1. The Department shall administer all laws and programs specifically assigned to it for administration, including:
    1. Federally funded services for older persons in accordance with the Older Americans Act.
    2. Federally funded vocational rehabilitation and independent living services for persons with disabilities in accordance with the Rehabilitation Act. The Division of Vocational Rehabilitation may contract with clients at up to $51.00 per year per employee, or may charge up to $70.00 per hour, for services rendered by the Employee Assistance Program. The Division shall charge $160.00 for each injured worker screening defined in the Department of Labor rules. For activities outside the scope of services funded by the Federal Assistive Technology Act, the Division may charge up to $100.00 per hour for assistive technology services rendered, including assistive technology consultations, assistive technology evaluations, individual assistive technology training, and assistive technology topic training. The Division may charge fees at the rate of up to $100.00 per month for specialized assistive technology equipment leasing. The Division may charge these fees to service providers, State agencies, schools, and individuals. The Division shall continue to provide the following services at no charge: information and assistance, State financing activities, equipment demonstration, short-term device loans, public outreach, technical assistance, and equipment reutilization. Fees shall be retained by the Division.
    3. Federally required survey and certification of health care facilities participating in Medicare or Medicaid, as provided by Titles XVIII and XIX of the Social Security Act.
    4. Special services, including vocational rehabilitation, for Vermonters who are blind or have a visual impairment and for Vermonters who are deaf or hard of hearing.
    5. The duties, responsibilities, and authority of the Division of Licensing and Protection pertaining to level IV facilities presently granted under the authority of chapter 71 of this title and any other provision of law.
    6. All of the duties, responsibilities, and authority of the Division of Licensing and Protection to level I and level II nursing homes and level III residential care homes, hospitals, and home health services granted under the authority of chapter 71 of this title and any other provision of law.
    7. The duties, responsibilities, and authority of the former Developmental Services Division of the former Department of Developmental and Mental Health Services, and the personal care and hi-tech programs in the former Department of Prevention, Assistance, Transition, and Health Access.
  2. The Department shall ensure coordination of government and private services directed at providing assistance to and analyzing issues affecting older persons and persons with disabilities.
  3. In addition to the powers vested in it by law, the Department may:
    1. cooperate with, and contract with, with the approval of the Governor, the federal government and appropriate federal agencies that fund programs that the Department administers;
    2. notwithstanding the provisions of 3 V.S.A. chapter 13, enter into an agreement with the University of Vermont and State Agricultural College to continue the Rural and Farm Family Rehabilitation Program; and
    3. take and hold in trust for the State any grant or devise of land or donation or bequest of money, or other personal property, to be applied to the maintenance of persons with developmental disabilities.

      Added 1989, No. 219 (Adj. Sess.), § 3; amended 1995, No. 47 , § 16, eff. April 20, 1995; 2005, No. 174 (Adj. Sess.), §§ 79, 79a; 2007, No. 76 , § 22a; 2011, No. 128 (Adj. Sess.), § 8; 2013, No. 96 (Adj. Sess.), § 200.

History

Reference in text. The Older Americans Act, referred to in subdiv. (a)(1), is codified as 42 U.S.C. § 3001 et seq.

The Rehabilitation Act, referred to in subdiv. (a)(2), is cited as the "Rehabilitation Act of 1973" and is codified as 29 U.S.C. § 701 et seq.

Titles XVIII and XIX of the Social Security Act, referred to in subdiv. (a)(3), are codified as 42 U.S.C. §§ 1395 et seq. and 1396 et seq., respectively.

Codification. This section was originally enacted as 33 V.S.A. § 3734 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2013 (Adj. Sess.). Subdiv. (a)(4): Substituted "have a visual impairment" for "visually impaired" following "blind or" and "hard of hearing" for "hearing impaired" at the end.

Subdiv. (c)(3): Substituted "persons with developmental disabilities" for "developmentally disabled persons" at the end.

Amendments--2011 (Adj. Sess.) Subdiv. (a)(2): Added the fourth through seventh sentences.

Amendments--2007. Subdiv. (a)(2): Added the third sentence.

Amendments--2005 (Adj. Sess.). Subdivs. (a)(5)-(a)(7): Added.

Subdiv. (c)(1): Inserted "and contract with, with the approval of the governor, the federal government and" preceding "appropriate".

Subdiv. (c)(3): Added.

Amendments--1995 Subdiv. (a)(2): Added the second and third sentences.

ANNOTATIONS

Cited. In re Scherer, 167 Vt. 582, 705 A.2d 1383 (mem.) (1997).

§ 505. Advisory Board.

  1. An advisory board to the Department is created for the purpose of advising the Commissioner with respect to programs and issues affecting older persons and persons with disabilities.
  2. The Board shall be composed of no fewer than 19 and no more than 24 members appointed by the Governor for terms of three years.  Of these members, no fewer than 14 shall be individuals who are older persons or persons with disabilities, of which at least seven shall be selected for their familiarity with and interest in programs and issues affecting the interests of older persons, and seven shall be selected for their familiarity with and interest in programs and issues affecting the interests of persons with disabilities.  Five members shall be selected to represent the interests of each of the five regions of the State.  Persons who are paid providers of services to older persons and persons with disabilities shall not be appointed except as representatives of one of the five regions of the State or because they otherwise qualify for membership.  The Advisory Board and Commissioner shall seek the advice and recommendations of paid service providers on an organized and regular basis.
  3. The Governor shall designate the chair of the Board.
  4. Members shall not be entitled to compensation but shall be reimbursed for actual and necessary expenses incurred in connection with their duties as members of the Board.
  5. A vacancy shall be filled in the manner provided for the original appointment for the unexpired portion of that term.
  6. The Board shall advise the Commissioner on matters related to the interests of older persons and persons with disabilities. It shall be guided generally by reference to the statements of objectives and policy found in the Older Americans Act and the Americans with Disabilities Act.
  7. The Board may establish committees to facilitate its work and to ensure it pays adequate and appropriate attention to the range of issues for which the Department is responsible.  The Board may also create ad hoc committees to address discrete issues as they arise.
  8. The Commissioner shall ensure that the Advisory Board and its committees receive sufficient staff support to meet their responsibilities.

    Added 1989, No. 219 (Adj. Sess.), § 3.

History

Reference in text. The Older Americans Act, referred to in subsec. (f), is codified as 42 U.S.C. § 3001 et seq.

The Americans with Disabilities Act, referred to in subsec. (f), is codified as 42 U.S.C. § 12101 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3735 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Expiration of terms of members of board. 1989, No. 219 (Adj. Sess.), § 11, provided that the initial appointments to the advisory board shall be staggered so that no more than eight terms expire in any single year.

CHAPTER 6. PREVENTION AND TREATMENT OF SEXUAL ABUSE

Sec.

§ 601. Center for the Prevention and Treatment of Sexual Abuse.

  1. There is established within the Agency of Human Services the Vermont Center for the Prevention and Treatment of Sexual Abuse (the Center).  The Center shall be jointly overseen by the Commissioner of Corrections and the Commissioner for Children and Families.
  2. The purpose of the Center shall be to protect Vermont's citizens from sexual assault and child sexual abuse.  The Center shall oversee Vermont's systematic response to sexual assault and child sexual abuse, while recognizing that many agencies, organizations, and individuals have their own independent roles and responsibilities within this system.
  3. The responsibilities of the Center shall include:
    1. coordinating sex offender treatment programs in correctional and juvenile institutions and in the community;
    2. coordinating victim and family treatment programs;
    3. providing support to sexual abuse prevention programs statewide and in local communities;
    4. providing training to recognize and prevent sexual abuse in consultation with the Department of Corrections, the Department for Children and Families, the Department of Mental Health, the Department of State's Attorneys and Sheriffs, and other agencies, organizations, and individuals as are desirable and necessary;
    5. providing a central organization for the acquisition and dissemination of information regarding best practices for the prevention of sexual violence; the treatment and supervision of adult and juvenile offenders; the provision of victims services; judicial practices conducive to public protection and the supervision of offenders; protocols for coordinated investigations of allegations of child sexual abuse; and any other information that may be beneficial in aiding Vermont's response to sexual abuse;
    6. making available an array of services to sexually abused children and their family members; and
    7. providing grants to community agencies to further the Center's purpose of protecting Vermont's citizens from sexual assault and child sexual abuse.
  4. The Commissioner of Corrections and the Commissioner for Children and Families shall be responsible for maintaining and providing staffing for the center.

    Added 2009, No. 1 , § 12, eff. March 4, 2009; amended 2011, No. 139 (Adj. Sess.), § 37, eff. May 14, 2012.

History

Amendments--2011 (Adj. Sess.). Subsec. (d): Deleted "and shall report every two years to the corrections oversight committee on the accomplishments of the center" from the end.

CHAPTER 7. OFFICE OF ALCOHOL AND DRUG ABUSE

Sec.

Cross References

Cross references. Care and treatment of mentally ill users of alcohol or drugs, see 18 V.S.A. chapter 197, subchapter 1.

§§ 701-708a. Repealed. 2013, No. 131 (Adj. Sess.), § 17, eff. May 20, 2014.

History

Former §§ 701-708a. Former § 701, relating to declaration of policy, was derived from 1977, No. 208 (Adj. Sess.), § 1. For present provisions see 18 V.S.A. § 4801.

Former § 702, relating to definitions, was derived from 1977, No. 208 (Adj. Sess.), § 1 and amended by 2001, No. 146 (Adj. Sess.), § 5. For present provisions see 18 V.S.A. § 4802.

Former § 703, relating to the Alcohol and Drug Abuse Council; creation; terms; per diem, was derived from 1983, No. 51 , § 2 and amended by 2013, No. 75 , § 14c.

Former § 704, relating to administrative support, was derived from 1983, No. 51 , § 2.

Former § 705, relating to duties, was derived from 1983, No. 51 , § 2.

Former § 706, relating to the Office of Alcohol and Drug Abuse, was derived from 1983, No. 130 (Adj. Sess.), § 1 and amended by 1985, No. 102 (Adj. Sess.), § 22; 1987, No. 281 (Adj. Sess.). § 312; 1995, No. 113 (Adj. Sess.), § 3 and 1999, No. 133 (Adj. Sess.), §§ 40, 41. For present provisions see 18 V.S.A. § 4806.

Former § 707, relating to authority and accountability for alcoholism services; rules for acceptance into treatment, was derived from 1977, No. 208 (Adj. Sess.), § 1. For present provisions see 18 V.S.A. § 4807.

Former § 708, relating to treatment and services, was derived from 1977, No. 208 (Adj. Sess.), § 1 and amended by 1987, No. 182 (Adj. Sess.), § 2; 2001, No. 146 (Adj. Sess.), § 6 and 2007, No. 179 (Adj. Sess.), § 11. For present provisions see 18 V.S.A. § 4810.

Former § 708a, relating to incarceration for inebriation prohibited, was derived from 2007, No. 179 (Adj. Sess.), § 12. For present provisions see 18 V.S.A. § 4811.

Annotations From Former §§ 701, 702

Cited. State v. Merritt, 149 Vt. 529, 546 A.2d 791 (1988).

Annotations From Former § 708

1. Failure to take intoxicated person into protective custody.

In absence of clear guidance from Legislature or courts, dictum in State v. Merritt, 149 Vt. 529, 546 A.2d 791 (1988), standing alone, was insufficient to create a "clearly established" right, under this section, upon which plaintiff could base suit against police officers for failure to take into protective custody individual who subsequently, while driving while intoxicated, had car accident which injured plaintiff. Napolitano v. Flynn, 949 F.2d 617 (2d Cir. 1991).

Failure of police officer to take intoxicated defendant into protective custody before alleged offense occurred did not estop the state from prosecuting defendant for operating a motor vehicle while under the influence of intoxicating liquor. State v. Merritt, 149 Vt. 529, 546 A.2d 791 (1988).

2. Actions against police officers.

Vermont courts have not construed this section to impose a duty upon which a police officer may be sued. Napolitano v. Flynn, 949 F.2d 617 (2d Cir. 1991).

CHAPTER 8. ALCOHOL AND DRUG ABUSE COUNSELORS

Sec.

§§ 801-805. Repealed. 2013, No. 131 (Adj. Sess.), § 17, eff. May 20, 2014.

History

Former §§ 801-805. Former § 801, relating to definitions, was derived from 1999, No. 133 (Adj. Sess.), § 38. For present provisions, see 26 V.S.A. § 3231.

Former § 802, relating to prohibition; penalties, was derived from 1999, No. 133 (Adj. Sess.), § 38 and amended by 2007, No. 29 , § 76. For present provisions, see 26 V.S.A. § 3232.

Former § 803, relating to exemptions, was derived from 1999, No. 133 (Adj. Sess.), § 38. For present provisions, see 26 V.S.A. § 3233.

Former § 804, relating to coordination of practice acts, was derived from 1999, No. 133 (Adj. Sess.), § 38. For present provisions, see 26 V.S.A. § 3234.

Former § 805, relating to director; duties, was derived from 1999, No. 133 (Adj. Sess.), § 38. For present provisions, see 26 V.S.A. § 3235.

§ 806. Repealed. 2009, No. 135 (Adj.. Sess.), § 26(17)(B).

History

Former § 806. Former § 806, relating to the alcohol and drug abuse advisor appointees, was derived from 1999, No. 133 (Adj. Sess.), § 38.

§§ 807-812. Repealed. 2013, No. 131 (Adj. Sess.), § 17, eff. May 20, 2014.

History

Former §§ 807-812. Former § 807, relating to eligibility, was derived from 1999, No. 133 (Adj. Sess.), § 38. For present provisions, see 26 V.S.A. § 3236.

Former § 808, relating to application, was derived from 1999, No. 133 (Adj. Sess.), § 38.

Former § 809, relating to biennial renewals, was derived from 1999, No. 133 (Adj. Sess.), § 38. For present provisions, see 26 V.S.A. § 3238.

Former § 810, relating to unprofessional conduct, was derived from 1999, No. 133 (Adj. Sess.), § 38 and amended by 2005, No. 148 (Adj. Sess.), § 52. For present provisions, see 26 V.S.A. § 3239.

Former § 811, relating to the Regulatory Fee Fund, was derived from 1999, No. 133 (Adj. Sess.), § 38.

Former § 812, relating to fees, was derived from 1999, No. 133 (Adj. Sess.), § 38. For present provisions, see 26 V.S.A. § 3241.

CHAPTER 9. DIVISION OF RATE SETTING

Sec.

History

Revision note. Substituted "Division of Rate Setting" for "Office of Rate Setting" as the chapter heading to conform to § 902 of this chapter.

Nursing homes; Health Information Technology incentives 2009, No. 1 (Sp. Sess.), § E.308.1(a) provides: "The division of rate setting shall provide an incentive or rate adjustment by rule to nursing homes to install electronic medical records in order to improve quality of care by avoiding medical errors and to achieve savings in health care costs through streamlined administration. The incentive or rate adjustment shall be in addition to any current adjustment for capital costs. The incentive or rate adjustment shall be available to nursing homes that have installed electronic medical records prior to the adoption of the rule."

§ 900. Definitions.

Unless otherwise required by the context, the words and phrases in this chapter shall be defined as follows:

  1. "Agency" means the Agency of Human Services.
  2. "Director" means the Director of Rate Setting.
  3. "Division" means the Division of Rate Setting.
  4. "Provider" means any entity, excluding a hospital or a physician, providing services to State-assisted persons pursuant to a contract or other form of agreement with the State.
  5. "Secretary" means the Secretary of Human Services.
  6. "State-assisted" means a person eligible for or receiving benefits administered by or in coordination with the Agency.

    Added 1995, No. 160 (Adj. Sess.), § 9; amended 1997, No. 61 , § 268; 2007, No. 172 (Adj. Sess.), § 9; 2013, No. 131 (Adj. Sess.), § 18, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Deleted former subdiv. (4), redesignated former subdiv. (5) as present (4) and former subdiv. (6) as present (5), and added present subdiv. (6).

Amendments--2007 (Adj. Sess.). Subdiv. (2): Deleted "or 'director of rate setting'" preceding "means" and "administration and" preceding "rate".

Amendments--1997 Subdiv. (2): Amended generally.

§ 901. Reimbursement objectives.

Reimbursement rates for nursing homes shall reflect the following objectives:

  1. maintain an equitable and fair balance between cost containment and quality care in nursing homes;
  2. encourage nursing homes to admit persons without regard to their source of payment;
  3. provide an incentive to nursing homes to admit and provide care to persons in need of comparatively greater care;
  4. be manageable administratively for both the State and nursing homes; and
  5. prevent unnecessary cost increases.

    Added 1989, No. 267 (Adj. Sess.), § 1, eff. July 1, 1991; amended 1995, No. 160 (Adj. Sess.), § 10.

History

Codification. This section was originally enacted as 33 V.S.A. § 190 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--1995 (Adj. Sess.) Deleted "under the Medicaid program" following "rates" in the introductory paragraph.

§ 902. Division of Rate Setting, Director.

  1. There is hereby created in the Agency of Human Services a Division of Rate Setting, which shall provide the Agency of Human Services with special financial, accounting, auditing, and related legal expertise for the purpose of rate setting and such other duties as the Secretary shall direct.
  2. The Division shall be headed by a director who shall report to the Secretary of the Agency or the Secretary's designee.
  3. [Repealed.]

    Added 1977, No. 204 (Adj. Sess.), § 1; amended 1995, No. 160 (Adj. Sess.), § 11; 1997, No. 61 , §§ 269, 271(b); 2005, No. 174 (Adj. Sess.), § 80; 2007, No. 172 (Adj. Sess.), § 9a.

History

Amendments--2007 (Adj. Sess.). Subsec. (b): Substituted "who shall report to the secretary of the agency" for "of administration" following "director" and "the secretary's" for "his or her" preceding "designee".

Amendments--2005 (Adj. Sess.). Subsec. (b): Substituted "or his or her designee" for "and rate setting, appointed pursuant to 3 V.S.A. § 3086".

Amendments--1997 Subsec. (b): Amended generally.

Subsec. (c): Repealed.

Amendments--1995 (Adj. Sess.) Subsec. (a): Amended generally.

Prior law. 33 V.S.A. § 191.

§ 903. Division, staff.

The Director, with the approval of the Secretary, may employ such professional and clerical personnel as are necessary for the implementation of this chapter. The Director, with the approval of the Secretary, may also enter into contracts with attorneys, private auditors, consultants, and registered or certified public accountants for additional services including auditing providers as may be necessary for the proper administration of this chapter.

Added 1977, No. 204 (Adj. Sess.), § 1; amended 1997, No. 61 , § 270.

History

Amendments--1997 Section amended generally.

Prior law. 33 V.S.A. § 192.

§ 904. Rate setting.

  1. The Director shall establish by rule procedures for determining payment rates for care of State-assisted persons to nursing homes and to such other providers as the Secretary shall direct. The Secretary shall have the authority to establish rates that the Secretary deems sufficient to ensure that the quality standards prescribed by section 7117 of this title are maintained, subject to the provisions of section 906 of this title. Beginning in State fiscal year 2003, the Medicaid budget for care of State-assisted persons in nursing homes shall employ an annual inflation factor that is reasonable and that adequately reflects economic conditions, in accordance with the provisions of Section 5.8 of the rules adopted by the Division of Rate Setting (Methods, Standards, and Principles for Establishing Medicaid Payment Rates for Long-Term Care Facilities).
  2. No payment shall be made to any nursing home, on account of any State-assisted person, unless the nursing home is certified to participate in the State/federal medical assistance program and has in effect a provider agreement.

    Added 1977, No. 204 (Adj. Sess.), § 1; amended 1981, No. 224 (Adj. Sess.), § 1, eff. May 4, 1982; 1989, No. 267 (Adj. Sess.), § 2, eff. July 1, 1991; 1995, No. 160 (Adj. Sess.), § 12; 1997, No. 61 , § 270a; 2001, No. 63 , § 99; 2013, No. 131 (Adj. Sess.), § 19, eff. May 20, 2014; 2021, No. 20 , § 280.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 33 V.S.A. § 193 by 1989, No. 267 (Adj. Sess.), § 2, was incorporated in the text of this section.

Amendments--2021 Subsec. (a): In the last sentence substituted "that" for "which" twice and "rules adopted" for "regulations promulgated" in the last sentence.

Amendments--2013 (Adj. Sess.). Subsec (b): Made a minor stylistic change.

Amendments--2001. Subsec. (a): Added the third sentence.

Amendments--1997 Subsec. (a): Rewrote the second sentence.

Amendments--1995 (Adj. Sess.) Subsec. (a): Rewrote the first sentence, and inserted "for nursing homes" following "determined" and added "subject to section 910 of this chapter" following "standards" in the second sentence.

Subsec. (b): Amended generally.

Amendments--1989 (Adj. Sess.). Section amended generally.

Amendments--1981 (Adj. Sess.). Section amended generally.

Prior law. 33 V.S.A. § 193.

ANNOTATIONS

Cited. LD & MD, Inc. v. State, 154 Vt. 384, 576 A.2d 1244 (1990).

§ 905. Basis for determination of nursing home rates.

    1. Consistent with the objectives established under section 901 of this title, the Division shall develop a payment system based on cost categories established for each nursing home. The system shall include no fewer than the following three cost categories: (a) (1)  Consistent with the objectives established under section 901 of this title, the Division shall develop a payment system based on cost categories established for each nursing home. The system shall include no fewer than the following three cost categories:
      1. direct care costs, which refer, at a minimum, to nursing salaries and nursing assistant wages, fringe benefits, and payroll taxes associated therewith;
      2. indirect costs, which refer to all operating costs not established under subdivision (1) of this subdivision; and
      3. property and related costs.
    2. At the discretion of the Director, the cost categories referred to in subdivision (1) of this subsection may be subdivided. Facilities may also be divided into groups, based on considerations such as size or other appropriate determinants within each cost category or subdivision thereof.
    1. The basis for reimbursement within the direct care cost category shall be a resident classification system, which shall group residents into classes according to similarity of their assessed condition and required services.  Each resident shall be assigned to one of no fewer than three classes, based on the nature and extent of nursing care needed.  The Director may subdivide these classes. (b) (1)  The basis for reimbursement within the direct care cost category shall be a resident classification system, which shall group residents into classes according to similarity of their assessed condition and required services.  Each resident shall be assigned to one of no fewer than three classes, based on the nature and extent of nursing care needed.  The Director may subdivide these classes.
    2. The direct care component of a nursing home's payment rate shall be reflective of the necessary professional and paraprofessional nursing staff time and costs required to address the care needs of the residents of the facility.
    3. Assessments of residents for classification purposes shall be made on the basis of standardized information made available by each facility to the Division. Each nursing home shall assess all of its residents not less often than annually, in accordance with standards and a schedule developed by the Department of Disabilities, Aging, and Independent Living. The accuracy of the information shall be verified and final classifications made by the Department of Disabilities, Aging, and Independent Living.
  1. Rates shall be determined prospectively for each facility on the basis of cost reports submitted to the Director.  The Director shall certify the rate for each facility annually by selecting a base year, setting a rate for the base year, and adjusting it annually by inflation factors that are reasonable and that adequately reflect economic conditions. The inflation factors may differ for direct care and other costs.  The base years may be changed at different intervals for direct care and other costs.  For direct care costs, such change shall occur no less frequently than once every three years, and, for other costs, no less frequently than once every four years, unless the Secretary of Human Services certifies to the General Assembly that it is not necessary to do so.

    Added 1989, No. 267 (Adj. Sess.), § 3; amended 1995, No. 160 (Adj. Sess.), § 13; 2005, No. 174 (Adj. Sess.), § 81; 2013, No. 131 (Adj. Sess.), § 20, eff. May 20, 2014.

History

Codification. This section was originally enacted as 33 V.S.A. § 193a and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

2014. Redesignated introductory language in subsec. (a) to be subdiv. (a)(1), redesignated subdivs. (1)-(3) to be subdivs. (1)(A)-(1)(C), redesignated subdiv. (4) to be subdiv. (2), and revised internal references accordingly.

Amendments--2013 (Adj. Sess.). Subdiv. (a)(4): Substituted "subdivisions (1) through (3)" for "subdivisions (1)-(3)" following "referred to in".

Amendments--2005 (Adj. Sess.). Subdiv. (b)(3): Substituted "department of disabilities, aging, and independent living" for "department of aging and disabilities" in the second and third sentences.

Amendments--1995 (Adj. Sess.) Inserted "nursing home" following "determination" in the section heading.

Nursing home rates. 2005, No. 56 , § 3a provides: "(a) Any change in the method for calculating nursing home rates to a calculation based on a certain number of nursing home bed days shall follow the process established in chapter 25 of Title 3.

"(b) The agency of human services shall amend the Medicaid Payment Rates for Long Term Care Facilities Rules to include the following criteria to be considered by the agency when determining eligibility for a special rate under Rule 10.3:(13) "the ratio of individuals receiving care in a nursing facility to individuals receiving home- and community-based services in the county in which the facility is located."

Commencement of schedule for change of base years. 1989, No. 267 (Adj. Sess.), § 7(b), eff. July 1, 1991, provided that the change in base years, as provided in subsec. (c) of this section, shall be based on a schedule commencing Jan. 1, 1990.

§ 906. Facility payment.

  1. The payment rate for each facility shall be the sum of its per diem allowance for each cost category, subject to such limitations as the Secretary shall prescribe by rule pursuant to section 907 of this title.
  2. The payment for each facility's direct care costs shall be a function of the number of resident days of each resident class and shall be adjusted in a timely manner to reflect changes in the assessed needs of residents.

    Added 1989, No. 267 (Adj. Sess.), § 4, eff. July 1, 1991; amended 1997, No. 61 , § 270b.

History

Codification. This section was originally enacted as 33 V.S.A. § 193b and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--1997 Subsec. (a): Inserted "subject to such limitations, as the secretary shall prescribe by rule pursuant to section 907 of this title" following "category".

§ 907. Payment limits.

  1. The Director shall establish payment limits consistent with the provisions of section 901 of this title to encourage the economic and efficient operation of nursing homes and other providers.
  2. The payment limits shall not act as a disincentive for nursing homes to address the assessed needs or improve the conditions of residents.

    Added 1989, No. 267 (Adj. Sess.), § 5, eff. July 1, 1991; amended 1995, No. 160 (Adj. Sess.), § 14; 1997, No. 61 , § 270c.

History

Codification. This section was originally enacted as 33 V.S.A. § 193c and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--1997 Subsec. (a): Deleted "for each cost category, or subdivision thereof, which, for nursing homes, are" following "payment limits".

Subsec. (b): Substituted "limits" for "limit established for the direct care cost category" following "payment".

Amendments--1995 (Adj. Sess.) Subsec. (a): Amended generally.

§ 908. Powers and duties.

  1. Each nursing home or other provider shall file with the Division, on request, such data, statistics, schedules, or information as the Division may require to enable it to carry out its function. Information received from a nursing home under this section shall be available to the public, except that the specific salary and wage rates of employees, other than the salary of an administrator, shall not be disclosed unless disclosure is required under 1 V.S.A. § 317(b) .
  2. The Division shall have the power to examine books and accounts of any nursing home or other provider caring for State-assisted persons, to subpoena witnesses and documents, to administer oaths to witnesses, and to examine them on all matters of which the Division has jurisdiction.
  3. The Secretary shall adopt all rules necessary for the implementation of this chapter.

    Added 1977, No. 204 (Adj. Sess.), § 1; amended 1995, No. 160 (Adj. Sess.), § 15; 1997, No. 131 (Adj. Sess.), § 2; 2013, No. 131 (Adj. Sess.), § 21, eff. May 20, 2014; 2015, No. 29 , § 9; 2021, No. 20 , § 281.

History

Revision note. Substituted "this chapter" for "this subchapter" in subsec. (c) in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments--2021 Subsec. (c): Deleted "and regulations" following "rules".

Amendments--2015. Subsec. (a): Added "unless disclosure is required under 1 V.S.A. § 317(b)" in the second sentence.

Amendments--2013 (Adj. Sess.). Subsec. (b): Made a minor stylistic change.

Amendments--1997 (Adj. Sess.). Subsec. (a): Added the second sentence.

Amendments--1995 (Adj. Sess.) Subsec. (a): Inserted "or other provider" following "home".

Subsec. (b): Inserted "or other provider" preceding "caring for" and substituted "state-assisted" for "state aided" thereafter.

Subsec. (c): Substituted "adopt" for "have the authority under the Administrative Procedure Act to promulgate" preceding "all rules" and substituted "chapter" for "subchapter" following "implementation of this".

Prior law. 33 V.S.A. § 194.

§ 909. Appeal.

  1. A nursing home that feels aggrieved by a final order of the Division may do any of the following:
    1. Have the right of direct appeal to the Vermont Supreme Court pursuant to the Vermont Rules of Civil Procedure and the Vermont Rules of Appellate Procedure under the same terms and conditions as if the appeal were taken to the Supreme Court from the Superior Court pursuant to the laws of Vermont.
    2. Have the right to appeal de novo to the Superior Court of the county where the nursing home facility is situated.
    3. Request a review by the Secretary of Human Services. The Secretary of Human Services shall designate an independent appeals officer who shall be a registered or certified public accountant. The appeals officer shall conduct appeal hearings and make findings of fact and recommendations to the Secretary. The appeals officer shall have the power to subpoena witnesses and documents and administer oaths. A party aggrieved by a determination of the Secretary may obtain judicial review under the provisions of subdivision (1) or (2) of this subsection.
  2. An appeal from any determination made under this chapter shall not be made under 3 V.S.A. § 3091 .

    Added 1977, No. 204 (Adj. Sess.), § 1; amended 1995, No. 160 (Adj. Sess.), § 16; 2021, No. 20 , § 282.

History

Revision note. Deleted "may" from the beginning of subdiv. (a)(1) and "who" following "who" in the second sentence of subdiv. (a)(3) as repetitive words.

Substituted "this chapter" for "this subchapter" in subsec. (b) in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments--2021 Subsec. (a): Amended generally.

Amendments--1995 (Adj. Sess.) Subsec. (a): Substituted "nursing home that" for "party who" preceding "feels" in the introductory paragraph.

Prior law. 33 V.S.A. § 195.

ANNOTATIONS

Analysis

1. Application.

The Supreme Court will limit its review in direct appeals brought under the statute authorizing appeals by nursing homes that feel aggrieved by final orders of the Division of Rate Setting to those questions capable of accurate resolution without the benefit of a factual record. In re Appeal of Berlin Health & Rehab., Inc., 180 Vt. 432, 912 A.2d 449 (November 3, 2006).

2. Appeal period.

A complaint seeking de novo review in Superior Court of an order of the Division of Rate Setting of the Agency of Human Services must be filed within 30 days from the date of entry of the order; claims that the Division's actions were improper may not be cited to excuse untimely filing. LD & MD, Inc. v. State, 154 Vt. 384, 576 A.2d 1244 (1990).

A letter from the Division of Rate Setting of the Agency of Human Services, which demanded payment representing recaptured depreciation from the proceeds of the sale of a nursing home, was an agency order which triggered the running of the appeal period. LD & MD, Inc. v. State, 154 Vt. 384, 576 A.2d 1244 (1990).

Superior Court lacked jurisdiction to review an order of the Division of Rate Setting of the Agency of Human Services, which demanded payment representing recaptured depreciation from the sale of a nursing home, where nursing home owner filed its complaint nearly one year after the recapture decisions was made. LD & MD, Inc. v. State, 154 Vt. 384, 576 A.2d 1244 (1990).

Cited. Berlin Convalescent Center, Inc. v. Stoneman, 159 Vt. 53, 615 A.2d 141 (1992); In re Mayo Health Care, Inc., 175 Vt. 605, 830 A.2d 129 (mem.) (2003).

§ 910. Availability of payment for nursing home services.

The Secretary may, with 90 days' notice to the nursing home, reduce the number of days of nursing home service or the number of nursing home beds for which payments are available under the State/federal medical assistance program in order to meet State budgetary goals, provided that the standards of care required by section 7117 of this title and by rule are maintained.

Added 1977, No. 204 (Adj. Sess.), § 1; amended 1995, No. 160 (Adj. Sess.), § 17; 2013, No. 131 (Adj. Sess.), § 22, eff. May 20, 2014; 2021, No. 20 , § 283.

History

Amendments--2021 Deleted "In addition to any other reductions required by this act," from the beginning of the section.

Amendments--2013 (Adj. Sess.). Deleted ", adopted by January 1, 1997," following "title and by rule".

Amendments--1995 (Adj. Sess.) Section amended generally.

Prior law. 33 V.S.A. § 196.

PART 2 Economic Assistance

CHAPTER 10. REACH FIRST

Subchapter 1. Eligibility and Assistance

§ 1001. Definitions.

As used in this chapter:

  1. "Able to work" means to be free of any physical, emotional, or mental condition that would prevent the individual from engaging in any combination of the work activities for at least 35 hours per week.
  2. "Able to work part time" means having a physical, emotional, or mental condition that would allow the individual to engage in any combination of the work activities for at least 10 hours per week but would prevent the individual from engaging in such activities for 35 or more hours per week.
  3. "Adult" means an individual who:
    1. is 18 years of age or older and not a dependent child; or
    2. is under 18 years of age and:
      1. is pregnant; or
      2. is a parent who is the caretaker for a dependent child.
  4. "Assessment" means the information-gathering process, carried out by the Department's established protocol, that identifies an individual's skills, aptitudes, interests, life and work experience, and barriers, and the determination of how these factors relate to the individual's current or potential participation in the labor force and his or her family responsibilities. Where appropriate, this process includes the use of tests, other standardized measurement tools, and referrals to relevant professionals for evaluation or diagnosis. The Department shall use the information gathered as part of this process in developing the individual's family development plan, as well as, where applicable, assessing the appropriateness and feasibility of the individual's education, training, and employment goals and determining the individual's ability to work. The Department shall include a process to determine the development and well-being of the children in the family.
  5. "Barrier" means any physical, emotional, or mental condition; any lack of an educational, vocational, or other skill or ability; and any lack of transportation, child care, housing, medical assistance, or other services or resources, domestic violence circumstances, caretaker responsibilities, or other conditions or circumstances that prevent an individual from engaging in employment or other work activity.
  6. "Caretaker" means an individual 18 years of age or older who is fulfilling a parental role in caring for a dependent child by providing physical care, guidance, and decision making related to the child's health, school, medical care, and discipline.
  7. "Case management" means the services provided by or through the Department to participating families, including assessment, information, referrals, and assistance in the preparation and implementation of a family development plan under section 1007 of this title.
  8. "Commissioner" means the Commissioner for Children and Families or his or her designee.
  9. "Department" means the Department for Children and Families.
  10. "Dependent child" means a child who is a resident of this State and:
    1. is under 18 years of age; or
    2. is 18 years of age or older who is a full-time student in a secondary school, or attending an equivalent level of vocational or technical training, and is reasonably expected to complete the educational program before reaching 19 years of age or is not expected to complete the educational program before reaching 19 years of age solely due to a documented disability.
  11. "Eligible family" means a family that is determined to be financially eligible for the programs authorized by this chapter, in accordance with rules adopted by the Commissioner.
  12. "Family" means:
    1. one or more dependent children living with one or both parents or a relative or caretaker of such children; or
    2. a pregnant individual.
  13. "Living with a relative or caretaker" means living with a caretaker or relative in a residence maintained by the caretaker or one or more relatives at his or her or their home.
  14. "Parent" means a biological parent, stepparent, adoptive parent, or pregnant individual.
  15. "Participant" or "participating adult" means an adult member of a participating family.
  16. "Participating family" means an eligible family that participates in the Reach First program.
  17. "Reach Ahead" means the program established under chapter 12 of this title.
  18. "Reach First payment" means a one-time payment of cash as determined in section 1004 of this title.
  19. "Reach First services" means the service component of the Reach First program consisting of case management services, support services, and referrals provided to eligible families to assist them in becoming self-sufficient.
  20. "Reach Up" means the program established under chapter 11 of this title.
  21. "Relative" means a person related to a dependent child, as defined by the Department by rule.
  22. "Resources" means any income and property available from whatever source.
  23. "Secretary" means the Secretary of Human Services or his or her designee.
  24. "Temporary Assistance to Needy Families" or "TANF" means the block grant provided to this State and established in accordance with Part A of Title IV of the federal Social Security Act, as amended, and the regulations promulgated under the Act by the U.S. Secretary of Health and Human Services.
  25. "Unable to work" means not able to work and not able to work part time.
  26. "Work activities" means the following activities limited to the extent and degree that they are allowed and countable in accordance with Part A of Title IV of the Social Security Act:
    1. unsubsidized employment;
    2. subsidized private sector employment;
    3. subsidized public sector employment;
    4. work experience (including work associated with the refurbishing of publicly assisted housing) if sufficient private sector employment is not available;
    5. on-the-job training;
    6. job search and job readiness assistance;
    7. community service programs;
    8. vocational educational training (not to exceed 12 months with respect to any individual);
    9. job skills training directly related to employment;
    10. education directly related to employment, in the case of a recipient who has not received a high school diploma or a certificate of high school equivalency;
    11. satisfactory attendance at secondary school or in a course of study leading to a certificate of general equivalence, in the case of a recipient who has not completed secondary school or received such a certificate;
    12. the provision, consistent with the Department's rules applicable to self-employment, of child care services to an individual who is participating in a community service program;
    13. attendance at a financial literacy class; and
    14. any other work activity recognized in accordance with Part A of Title IV of the Social Security Act, as amended.
  27. "Work-ready" means the participant possesses the education or skills demanded by the local job market or is capable of participating in one or more work activities at the level required by the participant's work requirement, and is not subject to any barrier.

    Added 2007, No. 30 , § 1, eff. May 17, 2007; amended 2021, No. 20 , § 284.

History

Reference in text. Part A of Title IV of the Social Security Act, referred to in subdivs. (24), (26), and (26)(N), is codified as 42 U.S.C. § 601 et seq.

Amendments--2021 Subdiv. (6): Substituted "18 years of age" for "age 18".

Subdiv. (10): Substituted "18 years of age" for "the age of 18" in subdiv. (A); and, in subdiv. (B), substituted the first instance of "19 years of age" for "the age of 19" and the second instance of "19 years of age" for "age 19".

Subdiv. (24): Substituted "promulgated under the Act" for "adopted pursuant thereto".

§ 1002. Purpose.

  1. The purpose of the Reach First program is:
    1. to stabilize families in crisis, assess the family's strengths and needs, and orient families to the programs, services, assistance, and participant responsibilities available to improve self-sufficiency, attain economic independence, and ensure the well-being of children;
    2. to refer families without recent work histories, recognizing individual and unique characteristics, to an appropriate program available to assist the family in obtaining the opportunities and skills necessary for self-sufficiency and economic independence;
    3. to assist families with recent work histories by providing short-term financial support and support services to stabilize the family while the family transitions back to employment;
    4. to support parental responsibility and positive parental role models, both custodial and noncustodial;
    5. to improve the well-being of children by providing short-term supports to their families and referrals to appropriate programs and services;
    6. to conserve State public financial resources by operating the system of human services in a manner that is efficient and avoids federal fiscal sanctions; and
    7. to conform to the federal TANF law.
  2. The critical elements of developing a short-term stabilization, assessment, and orientation program that assists families to maintain or attain self-sufficiency are:
    1. cooperative and realistic goal-setting, coupled with individualized case management that addresses each individual's situation and barriers to self-sufficiency;
    2. a short-term monetary payment and support services of a limited duration to provide for immediate, short-term needs of the family until the family attains employment quickly, or transitions to an appropriate program to assist the family in order to ensure the family's well-being and success to reaching self-sufficiency; and
    3. clear and comprehensive information on available options and appropriate services communicated to families in a simple fashion and easy transition to programs, such as Reach Ahead, Reach Up, the Postsecondary Education Program, and any other solely State-funded or separate State-funded programs.

      Added 2007, No. 30 , § 1, eff. May 17, 2007.

§ 1003. Eligibility.

  1. A family shall be eligible for the Reach First program if the family's income and resources are below the limits established for the Reach Up program, and the family resides in Vermont. All applicants for programs under this chapter or chapter 11 or 12 of this title shall be provided an orientation, initial assessments, the Reach First payment, and, if appropriate for the family, in-depth assessment, a family development plan, and services through Reach First.
  2. Reach First payments and services shall be available only once every 12 months for a family, except as provided for by rule. Families who have received Reach First within the past 12 months shall be provided financial assistance and services through Reach Up, the Postsecondary Education Program, or other program appropriate for the family. Families applying for or participating in other programs may also receive Reach First assessments, payments, or services as provided for by rule.
  3. The Commissioner may use the eligibility rules for Reach Up instead of adopting new eligibility rules for this program.
  4. An adult who accepts employment after reporting as directed under section 1007 of this title may receive Reach First or Reach Up, provided that the family remains financially eligible for the program in accordance with Department rules.

    Added 2007, No. 30 , § 1, eff. May 17, 2007.

§ 1004. Reach First payment.

  1. An eligible family shall receive a short-term cash payment, which is the equivalent of up to 120 days of Reach Up financial assistance for the relevant family size with the same income. The family may receive the payment in installments or a lump sum, if needed to avert a crisis as determined in the initial assessment or the family development plan, during the period in which the family seeks immediate employment or participates in assessment and creating a family development plan. The Commissioner may establish by rule exceptions to the limit on the amount of the payment, as long as the exceptions are budget-neutral to the program.
  2. The Department shall offer every eligible family the option of electronic or direct payment of the family's housing or other expenses to the person providing the lodging, utilities, or other service as provided for by rule.
  3. For the purposes of calculating the payment, child support shall be treated as income, except that the first $50.00 amount of child support shall be disregarded from income.

    Added 2007, No. 30 , § 1, eff. May 17, 2007.

§ 1005. Required services to participating families.

  1. The Commissioner shall provide to all eligible families an orientation and an initial, up-front assessment to determine which programs, referrals, or services are appropriate. The orientation shall provide the family with information about services and referrals available to the family, and the programs established under chapters 11 and 12 of this title, including program requirements, participant responsibilities, and incentives for participation and obtaining employment.
  2. If needed by the family to improve the family's prospects for job placement and job retention, the Commissioner shall provide participating families in-depth assessments of the full range of services needed by each family, intensive case management or case consultation services, referral to any agencies or programs that provide the services needed by participating families, and transition to other programs established under chapters 11 and 12 of this title. Services or referrals for services shall include:
    1. Appropriate child care, available at times that will enable employment or participation in services indicated by the participating family's family development plan. As used in this subdivision, "appropriate child care" shall not include:
      1. child care that the Department classifies as legally exempt child care, and that a parent or caretaker determines to be unacceptable; and
      2. child care that the Department classifies as either a registered family child care home or a licensed child care facility, and that a parent or caretaker determines to be unacceptable when such determination is confirmed by the Department.
    2. Transportation that will enable employment or participation in services indicated by the participating family's family development plan.
    3. Career counseling, education, and training, and job search assistance consistent with the purposes of this chapter.
    4. Vocational rehabilitation.
    5. Medical and dental assistance.
    6. Homelessness prevention and housing assistance.
    7. Family planning education and counseling.
    8. Assistance with obtaining documentation of an apparent or claimed physical, emotional, or mental condition that reasonably can be presumed to limit or eliminate the individual's capacity to engage in employment or other work activity.
    9. Transfer to a State-funded program under chapter 11, subchapter 3 of this title, the Reach Up program, or the Reach Ahead program.
    10. Any other services identified in the family development plan and determined by the Commissioner to be necessary and appropriate to achieve the purposes of this chapter or chapter 11 of this title.

      Added 2007, No. 30 , § 1, eff. May 17, 2007.

History

2007. In subdiv. (b)(9), substituted "subchapter 3 of chapter 11 of this title" for "subchapter 3" to correct a statutory cross-reference.

§ 1006. Case management; family development plans; coordinated services.

  1. If a family needs or requests in-depth assessment and ongoing services, the Commissioner shall provide all Reach First services to these participating families through a case management model. The case manager, with the full involvement of the family, shall recommend, and the Commissioner shall establish and modify as necessary, a family development plan for each participating family in need of ongoing services, with a right of appeal as provided by section 1132 of this title. A case manager shall be assigned to each participating family as soon as the family is determined to be eligible for this program and in need of services.
  2. The family development plan shall include:
    1. Each parent or caretaker's employment goal.
    2. An assessment of each parent or caretaker's strengths and barriers. The initial assessment shall include a literacy evaluation followed by a referral to an appropriate resource or program.
    3. An identification of the services, supports, and accommodations needed to overcome any barriers, to enable the family to achieve self-sufficiency, and to fulfill each parent or caretaker's personal and family responsibilities.
    4. An assignment of responsibilities, family development plan requirements, and activities among the case manager and family members, together with a time schedule for such responsibilities, requirements, and activities.
  3. The initial family development plan shall be completed within 30 days of the first meeting with the case manager. The case manager shall establish a schedule for periodic review of the family development plan.
  4. The Commissioner shall adopt rules, consistent with research on best practices, establishing maximum caseloads for case managers.

    Added 2007, No. 30 , § 1, eff. May 17, 2007.

§ 1007. Required participation.

  1. Each participating adult in a family receiving Reach First services shall participate in necessary assessments and developing a family development plan, if applicable, unless good cause exists for such noncompliance as defined by the Commissioner by rule. The Commissioner may use the same rules applicable to good cause as established in the Reach Up program.
    1. If an adult does not comply with the following requirements without good cause, the Department shall initiate the conciliation process to determine the reason that the adult has not complied with the requirements and shall modify the requirements, if necessary, or provide the adult with a second opportunity to comply: (b) (1)  If an adult does not comply with the following requirements without good cause, the Department shall initiate the conciliation process to determine the reason that the adult has not complied with the requirements and shall modify the requirements, if necessary, or provide the adult with a second opportunity to comply:
      1. The single parent or caretaker in a family who has no barriers to obtaining and maintaining a job and a recent and stable work history, including receiving wages for his or her most recent job that, when annualized, equal or exceed 150 percent of the federal poverty level applicable to the family, shall report to the Department of Labor for an immediate job search within two working days of having filed an application.
      2. The able-to-work adult in a two-parent family (when the other parent is able to work part time or unable to work) who has no barriers to obtaining and maintaining a job and a recent and stable work history, including receiving wages for his or her most recent job that, when annualized, equal or exceed 150 percent of the federal poverty level applicable to the family, shall report to the Department of Labor for an immediate job search within two working days of having filed an application.
      3. The adult in a two-parent family (when both parents are able to work) who is not the primary caretaker of the children shall report to the Department of Labor for an immediate job search within two working days of having filed an application.
    2. The Reach First payment may be withheld during the conciliation process and until the adult complies.
    3. If the adult does not report without good cause to the Department of Labor after the second opportunity, the adult shall be denied Reach First and Reach Up.
    1. If an adult does not comply with the following requirements without good cause, the Department shall initiate the conciliation process to determine the reason that the adult has not complied with the requirements and shall modify the requirements, if necessary: (c) (1)  If an adult does not comply with the following requirements without good cause, the Department shall initiate the conciliation process to determine the reason that the adult has not complied with the requirements and shall modify the requirements, if necessary:
      1. Each participating adult shall participate in the development of his or her family development plan.
      2. Each participating adult who is not referred to the Department of Labor pursuant to this subsection shall report as directed by the Department for assessment and evaluation activities.
      3. Each participating adult shall begin to comply with his or her family development plan requirements as soon as possible, and not later than 10 days following identification of initial requirements at the initial family development plan meeting. Each participating adult shall continue to comply with such family development plan requirements until such time as the family is ineligible or transferred to Reach Up or Reach Ahead. If a family is transferred to another program, the rules of that program apply.
    2. If conciliation is unsuccessful, the Department may apply the Reach Up sanctions and transfer the family to the Reach Up program for further case management and other services.

      Added 2007, No. 30 , § 1, eff. May 17, 2007; amended 2021, No. 20 , § 285.

History

Amendments--2021 Subdiv. (c)(1)(C): Substituted "not" for "no" preceding "later" in the first sentence.

Subchapter 2. Administrative Provisions

§ 1011. Transition to other programs.

  1. The Department shall transfer the family to Reach Up, a separate State program, or a solely State-funded program established under chapter 11 of this title if, after four months of receiving support in Reach First or sooner at the Department's discretion, a family is assessed to need ongoing financial assistance and the family is financially eligible for Reach Up, a separate State program, or a solely State-funded program established under chapter 11 of this title, unless the family chooses not to participate.
  2. If a family finds employment meeting or exceeding the work requirements for Reach Up for the family's size and composition, but is financially eligible for Reach Up, the Department shall transfer the family to Reach Up, unless the family chooses not to participate. A family transferring from Reach First to Reach Up shall be treated as a recipient for the purposes of income calculation.
  3. If a family finds employment meeting or exceeding the work requirements for Reach Up for the family's size and composition, is not financially eligible for Reach Up, and is eligible for the Reach Ahead program, the Department shall transfer the family to Reach Ahead, unless the family chooses not to participate. A family transferring from Reach First to Reach Ahead shall be treated as a recipient for the purposes of income calculation.
  4. A family transferring to another program under subsections (a) through (c) of this section shall not be required to complete a new application. Verification of income or other documentation may be required as provided for by rule.
  5. Transitional medical assistance of up to 36 months shall be provided to families with a working adult who leaves Reach First and is not eligible for Reach Up, as provided for in the Vermont Medicaid rule M302.21 in effect on May 1, 2007, provided that federal financial participation is available for such transitional medical assistance.

    Added 2007, No. 30 , § 1, eff. May 17, 2007; amended 2009, No. 67 (Adj. Sess.), § 92, eff. Feb. 25, 2010.

History

Amendments--2009 (Adj. Sess.). Subsecs. (b) and (c): Deleted "unsubsidized" preceding "employment".

§ 1012. Notice and appeal.

A participant may appeal decisions in accordance with 3 V.S.A. § 3091 . The Commissioner shall provide notice to each participant of the standards and procedures applicable to such appeals. All federal and Agency of Human Services rules regarding conciliation, notice, hearing, and appeal shall be followed in connection with such appeals.

Added 2007, No. 30 , § 1, eff. May 17, 2007.

CHAPTER 11. REACH UP

History

Amendments--1999 (Adj. Sess.). 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001, substituted "Reach Up" for "Aid and Services to Needy Families with Children" in the chapter heading.

Subchapter 1. General Provisions; Eligibility, Aid, and Services

§ 1101. Definitions.

As used in this chapter:

  1. "Able to work" means to be free of any physical, emotional, or mental condition that would prevent the individual from engaging in any combination of the work activities identified in subdivisions (28)(A) through (E) of this section for at least 35 hours per week.
  2. "Able to work part time" means having a physical, emotional, or mental condition that would allow the individual to engage in any combination of the work activities identified in subdivisions (28)(A) through (E) of this section for at least 10 hours per week but would prevent the individual from engaging in such activities for 35 or more hours per week.
  3. "Adult" means an individual who:
    1. is 18 years of age or older and not a dependent child; or
    2. is under 18 years of age and:
      1. is pregnant; or
      2. is a parent who is the caretaker for a dependent child.
  4. "Assessment" means the information-gathering process, carried out by the Department's established protocol, that identifies an individual's skills, aptitudes, interests, life and work experience, and barriers, and the determination of how these factors relate to the individual's current or potential participation in the labor force and his or her family responsibilities. Where appropriate, this process includes the use of tests, other standardized measurement tools, and referrals to relevant professionals for evaluation or diagnosis. The Department shall use the information gathered as part of this process in developing the individual's family development plan as well as, where applicable, assessing the appropriateness and feasibility of the individual's education, training, and employment goals and determining the individual's ability to work. The Department shall include a process to determine the development and well-being of the children in the family.
  5. "Barrier" means any physical, emotional, or mental condition; any lack of an educational, vocational, or other skill or ability; and any lack of transportation, child care, housing, medical assistance, or other services or resources, domestic violence circumstances, caretaker responsibilities, or other conditions or circumstances that prevent an individual from engaging in employment or other work activity.
  6. "Caretaker" means an individual 18 years of age or older who is fulfilling a parental role in caring for a dependent child by providing physical care, guidance, and decision making related to the child's health, school, medical care, and discipline.
  7. "Case management" means the services provided by or through the Department to participating families, including assessment, information, referrals, and assistance in the preparation and implementation of a family development plan under section 1107 of this title.
  8. "Commissioner" means the Commissioner for Children and Families or his or her designee.
  9. "Department" means the Department for Children and Families.
  10. "Dependent child" means a child who is a resident of this State and:
    1. is under 18 years of age; or
    2. is 18 years of age or older who is a full-time student in a secondary school, or attending an equivalent level of vocational or technical training, and is reasonably expected to complete the educational program before reaching 19 years of age or is not expected to complete the educational program before reaching 19 years of age solely due to a documented disability.
  11. "Eligible family" means a family that is determined to be financially eligible for the programs authorized by this chapter, in accordance with rules adopted by the Commissioner.
  12. "Family" means:
    1. one or more dependent children living with one or both parents or a relative or caretaker of such children; or
    2. a pregnant individual.
  13. "Financial assistance" means cash, payments, electronic or direct payments for a family's housing or other expenses, and other forms of benefits designed to meet a family's ongoing basic needs that are available through the Reach Up program. A family's ongoing basic needs include food, clothing, shelter, utilities, household goods, personal care items, and general incidental expenses.
  14. "Living with a relative or caretaker" means living with a caretaker or relative in a residence maintained by the caretaker or one or more relatives as his or her or their home.
  15. "Parent" means:
    1. the same as in 15C V.S.A. § 102(16);
    2. stepparents; and
    3. pregnant individuals.
  16. "Participant" or "participating adult" means an adult member of a participating family.
  17. "Participating family" means an eligible family that participates in the Reach Up program.
  18. "Reach Ahead" means the program established in chapter 12 of this title.
  19. "Reach First" means the program established in chapter 10 of this title.
  20. "Reach Up " means the program administered by the Department that assists and enables eligible families to become self-sufficient by providing financial assistance and Reach Up services.
  21. "Reach Up services" means the service component of the Reach Up program consisting of case management services, support services, and referrals provided to eligible families to assist them in becoming self-sufficient.
  22. "Relative" means a person related to a dependent child, as defined by the Department by rule.
  23. "Resources" means any income and property available from whatever source.
  24. "Secretary" means the Secretary of Human Services or his or her designee.
  25. "Subsidized job" means employment for which the employer receives a subsidy from TANF funds or other public funds to offset some or all of the wages and costs of employing a participant.
  26. "Temporary Assistance to Needy Families" or "TANF" means the block grant provided to this State and established in accordance with Part A of Title IV of the federal Social Security Act, as amended, and the regulations promulgated under the Act by the U.S. Secretary of Health and Human Services.
  27. "Unable to work" means not able to work and not able to work part time.
  28. "Work activities" means the following activities, limited to the extent and degree that they are allowed and countable in accordance with Part A of Title IV of the Social Security Act:
    1. unsubsidized employment;
    2. subsidized private sector employment;
    3. subsidized public sector employment;
    4. work experience (including work associated with the refurbishing of publicly assisted housing) if sufficient private sector employment is not available;
    5. on-the-job training;
    6. job search and job readiness assistance;
    7. community service programs;
    8. vocational educational training (not to exceed 12 months with respect to any individual);
    9. job skills training directly related to employment;
    10. education directly related to employment, in the case of a recipient who has not received a high school diploma or a certificate of high school equivalency;
    11. satisfactory attendance at secondary school or in a course of study leading to a certificate of general equivalence, in the case of a recipient who has not completed secondary school or received such a certificate;
    12. the provision, consistent with the Department's rules applicable to self-employment, of child care services to an individual who is participating in a community service program;
    13. attendance at a financial literacy class; and
    14. any other work activity recognized in accordance with Part A of Title IV of the Social Security Act as amended.
  29. "Work-ready" means the participant possesses the education or skills demanded by the local job market or is capable of participating in one or more work activities at the level required by the participant's work requirement, and is not subject to any barrier.

    Added 1967, No. 147 , § 4, eff. date, see note below; amended 1969, No. 256 (Adj. Sess.), § 6, eff. April 6, 1970; 1973, No. 152 (Adj. Sess.), §§ 20, 30, 37, eff. April 14, 1974; 1981, No. 108 , § 320; 1999, No. 147 (Adj. Sess.), § 4; 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; 2005, No. 113 (Adj. Sess.), § 2; 2005, No. 174 (Adj. Sess.), § 82; 2007, No. 30 , § 2, eff. May 17, 2007; 2013, No. 131 (Adj. Sess.), § 23, eff. May 20, 2014; 2019, No. 72 , § E.323.2; 2021, No. 20 , § 286.

History

Reference in text. Part A of Title IV of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 601 et seq.

2008. In subdivs. (1) and (2), substituted "1101(28)(A)" for "1101(27)(A)" to correct an error in the reference.

Revision note - In subdiv. (11), substituted "chapter" for "title" to correct an error in the reference.

Amendments--2021 Subdiv. (6): Substituted "18 years of age" for "age 18".

Subdiv. (10): Substituted "18 years of age" for "the age of 18" in subdiv. (A); and, in subdiv. (B), substituted the first instance of "19 years of age" for "the age of 19" and the second instance of "19 years of age" for "age 19".

Subdiv. (26): Substituted "under the Act" for "pursuant thereto" following "promulgated".

Amendments--2019. Subdiv. (15): Deleted "a biological parent, stepparent, adoptive parent, or pregnant individual" and added subdivs. (15)(A) through (15)(C).

Amendments--2013 (Adj. Sess.). Substituted "section" for "title" and deleted "1101" following "subdivisions" in subdivs. (1) and (2).

Amendments--2007. Subdiv. (4): Added the fourth sentence.

Subdiv. (13): Substituted "electronic or direct" for "vendor" preceding "payments" and inserted "for a family's housing or other expenses" following "payments" in the first sentence.

Subdiv. (14): Deleted the former subdiv. (14) and redesignated former subdivs. (15)-(18) as present subdivs. (14)-(17).

Subdivs. (18), (19): Added.

Subdivs. (19)-(28): Redesignated as subdivs. (20)-(29).

Subdiv. (20): Deleted "program" following "Reach Up".

Subdiv. (25): Rewrote the subdivision.

Subdiv. (27): Substituted "able-to-work-part-time" for "able to work part-time".

Subdiv. (29): Amended generally.

Amendments--2005 (Adj. Sess.). Subdiv. (8): Act No. 174, substituted "for children and families" for "of the department of prevention, assistance, transition, and health access".

Subdiv. (9): Act No. 174, substituted "for children and families" for "of prevention, assistance, transition, and health access".

Subdiv. (27): Act No. 113, added subdiv. (M) and redesignated former subdiv. (M) as present subdiv. (N).

Amendments--1999 (Adj. Sess.). Act No. 147, § 1, amended the section generally.

Act No. 147, § 4, substituted "department of prevention, assistance, transition, and health access" for "department of social welfare" in subdivs. (8) and (9).

Amendments--1981. Subdiv. (1)(B): Inserted "if the commissioner determines that appropriate funds permit" preceding "is under", substituted "commissioner" for "secretary" following "prescribed by", inserted "secondary" following "attending a" and deleted "college or university or their equivalent" preceding "or is regularly".

Amendments--1973 (Adj. Sess.). Subdiv. (1)(C)(ii): Substituted "department of social and rehabilitation services" for "department" following "responsibility of".

Subdiv. (3): Repealed.

Subdiv. (7): Added.

Subdiv. (8): Added.

Amendments--1969 (Adj. Sess.). Subdiv. (1)(C)(ii): Substituted "meets the eligibility requirements for such aid prescribed under federal laws and regulations" for "was at the time of the initiation of court proceedings a recipient of aid under this chapter" following "and who".

Effective date. 1967, No. 147 , § 53, provided that this section would take effect July 1, 1967, except subdiv. (1)(C)(iii), which took effect July 1, 1968.

Prior law. 33 V.S.A. § 2701.

ANNOTATIONS

Analysis

1. Federal requirements.

The State, in choosing to participate in the federal ANFC program, cannot administer its State program in conflict with federal laws, statutes, or regulations controlling such welfare programs. In re Fowler, 130 Vt. 176, 288 A.2d 463 (1972).

2. Parent .

Congress, in passing the ANFC program, intended the term "parent" to mean only an individual who owed the child a state-imposed legal duty of support. In re Fowler, 130 Vt. 176, 288 A.2d 463 (1972).

*3. Stepparent.

Where stepfather did not stand in the legal status of loco parentis at the time natural mother was refused ANFC benefits, Social Welfare Board's decision that such benefits should not be paid was erroneous. In re Fowler, 130 Vt. 176, 288 A.2d 463 (1972).

*4. Absence.

Where evidence supported findings that although daughter spent about equal time with each parent, her primary home was with mother, who provided most of her food, clothing, and financial support as well as space where the child kept all of her belongings, conclusions that child's father was an absent parent within the meaning of State regulations governing welfare assistance and that his absence interrupted his ability to provide physical care and guidance for the child and decision reversing termination of mother's benefits under the Aid to Needy Families with Children would be affirmed. Munro-Dorsey v. Department of Social Welfare, 144 Vt. 614, 481 A.2d 1055 (1984).

§ 1102. Purpose.

  1. The purpose of the Reach Up program is:
    1. to assist families, recognizing individual and unique characteristics, to obtain the opportunities and skills necessary for self-sufficiency;
    2. to encourage economic independence by removing barriers and disincentives to work and providing positive incentives to work;
    3. to support parental nurturing;
    4. to support parental responsibility and positive parental role models, both custodial and noncustodial;
    5. to measure the success of the system by what is best for children;
    6. to improve the well-being of children by providing for their immediate basic needs, including food, housing, and clothing;
    7. to respect the dignity of individuals and families receiving assistance by providing employment, education, and other services through social service delivery systems available to all Vermont residents and by encouraging the private sector to integrate families receiving assistance into the mainstream of the employment market;
    8. to recognize the challenges facing many families receiving assistance by minimizing structural financial disincentives to increased earnings and the abrupt termination of assistance before parents are fully integrated into the employment market;
    9. to conserve State public financial resources by operating the system of aid in a manner that is efficient and avoids federal fiscal sanctions; and
    10. to conform to the federal TANF law.
  2. The critical elements of developing a program that assists families to attain self-sufficiency are:
    1. the opportunity and obligation to work for those parents who are physically, emotionally, and otherwise able to do so;
    2. cooperative and realistic goal-setting, coupled with individualized case management that addresses each individual's situation and barriers to self-sufficiency;
    3. rigorous child support collection from noncustodial parents; and
    4. a full range of supportive modalities, including appropriate training, education, financial assistance, child care, counseling, and transportation.

      Added 1993, No. 106 (Adj. Sess.), § 2, eff. Jan. 12, 1994; amended 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; 2007, No. 30 , § 3, eff. May 17, 2007.

History

Former § 1102. Former § 1102, relating to qualifications for aid, was derived from 1967, No. 147 , § 4, and was repealed by 1999, No. 147 (Adj. Sess.), § 1.

Amendments--2007 Deleted "of aid" at the end of the section heading; substituted "improve the well-being of" for "protect" preceding "children" in subdiv. (a)(6), and "residents" for "citizens" following "Vermont" in subdiv. (a)(7).

Amendments--1999 (Adj. Sess.). Section amended generally.

Prior law. 33 V.S.A. § 2702.

Redesignation of section. This section, which was originally enacted as § 1105, was redesignated as § 1102 by 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001.

§ 1103. Eligibility and benefit levels.

  1. Financial assistance shall be given for the benefit of a dependent child to the relative or caretaker with whom the child is living, unless otherwise provided. The amount of financial assistance to which an eligible person is entitled shall be determined with due regard to the income, resources, and maintenance available to that person and, as far as funds are available, shall provide that person a reasonable subsistence compatible with decency and health. The Commissioner may fix by rule maximum amounts of financial assistance and act to ensure that the expenditures for the programs shall not exceed appropriations for them consistent with section 101 of this title. In no case shall the Department expend State funds in excess of the appropriations for the programs under this chapter.
  2. Financial assistance may include the maintenance of one or both parents, if in need and in the dependent child's home, or a relative or caretaker with whom a dependent child is living, if the relative or caretaker is without sufficient means of support.
  3. The Commissioner shall adopt rules for the determination of eligibility for the Reach Up program and benefit levels for all participating families that include the following provisions:
    1. No less than the first $250.00 per month of earnings from an unsubsidized job and 25 percent of the remaining unsubsidized earnings shall be disregarded in determining the amount of the family's financial assistance grant. The family shall receive the difference between countable income and the Reach Up payment standard in a partial financial assistance grant.
    2. No less than the first $90.00 per month of earnings from a subsidized job shall be disregarded in determining the amount of the family's financial assistance grant. The family shall receive the difference between countable income and the Reach Up payment standard in a partial financial assistance grant. Earnings from subsidized jobs shall qualify for federal and State earned income credit if the family is otherwise eligible for such credit.
    3. Each family development plan shall provide for an incentive payment to be paid to the participating family for completing a required activity or task.
    4. Education stipends, employment stipends, job training stipends, and incentive payments, as determined by the Commissioner, shall be excluded in calculating the financial assistance grant.
      1. The asset limitation shall be $9,000.00 for families for the purposes of determining initial and continuing eligibility for the Reach Up program, and the following savings accounts shall not be considered in the calculation for determining the asset limitation: (5) (A) The asset limitation shall be $9,000.00 for families for the purposes of determining initial and continuing eligibility for the Reach Up program, and the following savings accounts shall not be considered in the calculation for determining the asset limitation:
        1. a retirement account, such as an individual retirement arrangement (IRA), a defined contribution plan qualified under 26 U.S.C. § 401(k) , or any similar account as defined in 26 U.S.C. § 408; and
        2. a qualified child education savings account, such as the Vermont Higher Education Investment Plan, established in 16 V.S.A. § 2877 , or any similar plan qualified under 26 U.S.C. § 529.
      2. The value of assets accumulated from the earnings of adults and children in participating families and from any federal or Vermont earned income tax credit shall be excluded for purposes of determining continuing eligibility for the Reach Up program.
    5. Transitional medical assistance of up to 36 months shall be provided to families with a working adult who becomes ineligible for financial assistance due to increased earnings, unless family income exceeds 185 percent of the federal poverty level, and provided that federal financial participation is available for such transitional medical assistance.
    6. The equity value of one operable motor vehicle for each adult in the family and the equity value of one operable motor vehicle for any child of driving age who needs a vehicle to attend school or work shall be excluded for purposes of determining eligibility for the Reach Up program. The Commissioner shall take all steps necessary to retain current resource protections under the Supplemental Nutrition Assistance Program (SNAP) so that the rules under SNAP and the Reach Up program are compatible.
    7. An individual domiciled in Vermont shall be exempt from the disqualification provided for in 21 U.S.C. § 862a .
    8. [Repealed.]
  4. In determining eligibility and benefit levels for two-parent participating families, the Commissioner shall:
    1. Allow two-parent families with earned income who would otherwise qualify for assistance to receive financial assistance, regardless of the number of hours worked, and supplement their earnings with partial financial assistance and medical assistance.
    2. Eliminate the requirements for two-parent families that the primary worker must have worked at least six quarters and be unemployed for at least 30 days. It is the intent of this subdivision that two-parent and one-parent families receive financial assistance under more similar rules.
  5. In determining eligibility and benefit levels for parents who are under 18 in participating families, the Commissioner shall:
    1. Require parents who are under 18 to attend school or an appropriate alternative education or training activity.
    2. Ensure that the family development plan of a parent who is under 18 includes a requirement to take part in a case-managed support, education, and training program.
    3. Adopt rules, which shall include appropriate exemptions, requiring parents who are under 18 and who are not emancipated minors in accordance with 12 V.S.A. § 7151 to live with a parent or in an approved supervised living arrangement. The sanctions provided for noncompliance with a Reach Up family development plan requirement under section 1116 of this title shall apply to noncompliance with the rules adopted under this subdivision.
    4. Allow parents who are under 18 and who live with their parents to have their eligibility for the Reach Up program and the amount of their financial assistance grant determined without consideration of their parents' income.
  6. The Commissioner shall disregard no less than $50.00 per month of child support payments in determining eligibility and benefit levels for participating families.
  7. The Commissioner shall use the family composition rules applicable to the welfare demonstration project established pursuant to 1994 Acts and Resolves No. 106 in determining eligibility and benefit levels for a financial assistance grant.
  8. The Department shall offer every eligible family the option of electronic or direct payment of financial assistance for the family's housing or other expenses to the person providing the lodging, utilities, or other service as provided for by rule.

    Added 1967, No. 147 , § 4; amended 1973, No. 152 (Adj. Sess.), § 21, eff. April 14, 1974; 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; 2005, No. 113 (Adj. Sess.), § 1; 2007, No. 30 , § 4, eff. May 17, 2007; 2009, No. 1 (Sp. Sess.), § E.323; 2013, No. 131 (Adj. Sess.), § 24, eff. May 20, 2014; 2013, No. 198 (Adj. Sess.), § 1, eff. July 1, 2015; 2015, No. 58 , § E.323; 2015, No. 172 (Adj. Sess.), § E.323.2; 2017, No. 29 , § 2; 2017, No. 109 (Adj. Sess.), § 1; 2019, No. 72 , § E.323.1; 2021, No. 74 , § E.323.1.

History

2011. In subsec. (g), changed reference to act to conform to V.S.A. style.

Amendments--2021. Subdiv. (c)(9): Repealed.

Amendments--2019. Subdiv. (c)(9): Substituted "$77.00" for "$115.00" following "The amount of".

Amendments--2017 (Adj. Sess.). Subsec. (a): Substituted "rule" for "regulation" preceding "maximum" in the third sentence and "shall" for "may" in the fourth sentence.

Subdiv. (c)(7): Amended generally.

Amendments--2017. Subdiv. (c)(5): Amended generally.

Amendments--2015 (Adj. Sess.). Subdiv. (c)(9): Substituted "$115.00" for "$125.00".

Amendments--2015. Subdiv. (c)(9): Added.

Amendments--2013 (Adj. Sess.) Subdiv. (c)(1): Act No. 198 substituted "$250.00" for "$200.00" following "No less than the first".

Subdiv. (c)(5): Act No. 131 deleted "increased from $1,000.00 to" preceding "$2,000.00".

Subsec. (g): Act No. 131 substituted "1994 Acts and Resolves No. 106 in determining" for "No. 106 of the Acts of the 1993 Adj. Sess. (1994) in" following "pursuant to".

Amendments--2009 (Sp. Sess.). Subdiv. (c)(8): Added.

Amendments--2007. Section heading: Deleted "Aid" preceding "Eligibility".

Subsec. (a): Substituted "financial assistance" for "aid" throughout the subsection and inserted "consistent with section 101 of this title" at the end of the third sentence.

Subsec. (b): Substituted "Financial assistance" for "Aid" at the beginning of the subsection.

Subdiv. (c)(1): Substituted "$200.00" for "$150.00" preceding "per month".

Subdiv. (c)(3): Rewrote the subdivision.

Subdiv. (c)(5): Added the present second sentence.

Subsec. (h): Added.

Amendments--2005 (Adj. Sess.). Subdiv. (c)(5): Inserted "and from any federal or Vermont earned income tax credit" following "families".

Amendments--1999 (Adj. Sess.). Subsec. (a): Inserted "or caretaker" following "the relative" in the first sentence and substituted "that person" for "him" in two places in the second sentence.

Subsec. (b): Inserted "or caretaker" following "relative" in two places.

Subsec. (c): Amended generally.

Subsecs. (d)-(g): Added.

Amendments--1973 (Adj. Sess.). Subsec. (c): Substituted "department of social and rehabilitation services" for "department".

Prior law. 33 V.S.A. § 2703.

Cross References

Cross references. Assignment of support rights, see § 3902 of this title.

Child support debt of responsible parent, see § 3903 of this title.

Child welfare services, see chapter 49 of this title.

ANNOTATIONS

Analysis

1. Acceptance of aid.

Widow accepting aid of two dollars per week for certain of her minor children did not thereby become a pauper nor was her standing under pauper law affected in any way. Town of St. Johnsbury v. Town of Lyndon, 107 Vt. 404, 180 A. 892 (1935).

2. Maximum age.

Full month's aid should not be granted for the month during which a child reaches the maximum age. 1938 - 40 Op. Atty. Gen 330.

Cited. Vigario v. Department of Social Welfare, 140 Vt. 100, 436 A.2d 768 (1981); In re Diel, 158 Vt. 549, 614 A.2d 1223 (1992).

§ 1104. Abandonment or desertion; reporting.

Immediately upon granting assistance for the benefit of a dependent child who has been abandoned or deserted by a parent, the Commissioner shall give notice to the appropriate prosecuting officer charged with the duty of enforcing laws relating to the abandonment or desertion of children or minors.

Added 1967, No. 147 , § 4; amended 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; 2013, No. 131 (Adj. Sess.), § 25, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Substituted "Immediately upon" for "Forthwith upon" at the beginning of the section.

Amendments--1999 (Adj. Sess.) Appeared without change.

Prior law. 33 V.S.A. § 2704.

Cross References

Cross references. Uniform Desertion and Nonsupport Act, see 15 V.S.A. chapter 5, subchapter 1.

§ 1105. Child support payments.

  1. A financial assistance case shall not be closed until child support payments, minus the first $50.00 per month in such payments received on behalf of the family, in combination with other countable income, have exceeded the financial assistance payment standard in 12 consecutive calendar months.
  2. Notwithstanding any other provision of law, if financial assistance to a participating family is terminated due to receipt of child support, minus the first $50.00 per month in such payments, that in combination with other countable income is in excess of the financial assistance cash payment standard, and the family again becomes eligible for financial assistance within the following 12 calendar months solely because the family no longer receives excess child support, financial assistance shall be paid as of the date of the family's reapplication.

    Added 1993, No. 106 (Adj. Sess.), § 2, eff. Jan. 12, 1994; amended 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; 2007, No. 30 , § 5, eff. May 17, 2007.

History

Former § 1105. 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001, redesignated former section 1105 as section 1102 of this title.

Amendments--2007. Subsec. (b): Substituted "financial assistance" for "aid" throughout the subsection.

§ 1106. Required services to participating families.

  1. The Commissioner shall provide participating families case management services, periodic reassessment of service needs and the family development plan, and referral to any agencies or programs that provide the services needed by participating families to improve the family's prospects for job placement and job retention, including the following:
    1. Appropriate child care, available at times that will enable employment or participation in services indicated by the participating family's family development plan. As used in this subdivision, "appropriate child care" shall not include:
      1. child care that the Department classifies as legally exempt child care, and that a parent or caretaker determines to be unacceptable; and
      2. child care that the Department classifies as either a registered family child care home or a licensed child care facility, and that a parent or caretaker determines to be unacceptable when such determination is confirmed by the Department.
    2. Transportation that will enable employment or participation in services indicated by the participating family's family development plan.
    3. Career counseling, education, and training, job search assistance, and postsecondary education consistent with the purposes of this chapter.
    4. Vocational rehabilitation.
    5. Medical assistance.
    6. Homelessness prevention and housing assistance. For homeless families, housing search is a "job-readiness assistance activity" as long as consistent with the Department's rules.
    7. Family planning education and counseling.
    8. Assistance with obtaining documentation of an apparent or claimed physical, emotional, or mental condition that reasonably can be presumed to limit or eliminate the individual's capacity to engage in employment or other work activity.
    9. Services for teen parents through the teen parent education program established in cooperation with the Agency of Education.
    10. Any other services identified in the family development plan and determined by the Commissioner to be necessary and appropriate to achieve the purposes of this chapter.
  2. The Commissioner shall provide specialized case management services to families no later than four months after a family's financial assistance grant has been reduced as a result of a sanction under section 1116 of this title. The specialized case management shall be provided through a performance-based contract in order to intervene in the family's situation with the goal of compliance with an appropriate family development plan or work requirements as required under sections 1112 and 1113 of this title. The contract may be performed by another department within the Agency or by a community-based organization. If, after two months, a family fails to participate in specialized case management, case management shall resume through Reach Up.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2007, No. 30 , § 6, eff. May 17, 2007; 2009, No. 146 (Adj. Sess.), § C12; 2013, No. 92 (Adj. Sess.), § 291, eff. Feb. 14, 2014; 2015, No. 172 (Adj. Sess.), § E.323.3.

History

Revision note. In subdivs. (3) and (9), substituted "chapter" for "title" to correct errors in the references.

Amendments--2015 (Adj. Sess.). Subdiv. (a)(3): Deleted "and" preceding "job search" and inserted ", and postsecondary education" preceding "consistent".

Amendments--2013 (Adj. Sess.). Subdiv. (a)(9): Substituted "Agency of Education" for "department of education".

Amendments--2009 (Adj. Sess.) Designated formerly undesignated language as subsec. (a) and added subsec. (b).

Amendments--2007. Introductory paragraph: Deleted "initial assessment of the full range of services needed by each family" preceding "periodic".

Subdiv. (1)(A): Deleted "of social and rehabilitation services' child care services division" preceding "classifies".

Subdiv. (1)(B): Deleted "of social and rehabilitation services' child care services division" preceding "classifies" and substituted "facility" for "center" following "care" and "department" for "child care services division".

Subdiv. (9): Added the present subdiv. (9) and redesignated the former subdiv. (9) as present subdiv. (10).

§ 1107. Case management; family development plans; coordinated services.

    1. The Commissioner shall provide all Reach Up services to participating families through a case management model informed by knowledge of the family's home, community, employment, and available resources. Services may be delivered in the district office, the family's home, or the community in a way that facilitates progress toward accomplishment of the family development plan. Case management may be provided to other eligible families. The case manager, with the full involvement of the family, shall recommend, and the Commissioner shall modify as necessary, a family development plan established under the Reach First or Reach Up program for each participating family, with a right of appeal as provided by section 1132 of this title. A case manager shall be assigned to each participating family as soon as the family begins to receive financial assistance. If administratively feasible and appropriate, the case manager shall be the same case manager the family was assigned in the Reach First program. The applicant for or recipient of financial assistance under this chapter shall have the burden of demonstrating the existence of his or her condition. (a) (1)  The Commissioner shall provide all Reach Up services to participating families through a case management model informed by knowledge of the family's home, community, employment, and available resources. Services may be delivered in the district office, the family's home, or the community in a way that facilitates progress toward accomplishment of the family development plan. Case management may be provided to other eligible families. The case manager, with the full involvement of the family, shall recommend, and the Commissioner shall modify as necessary, a family development plan established under the Reach First or Reach Up program for each participating family, with a right of appeal as provided by section 1132 of this title. A case manager shall be assigned to each participating family as soon as the family begins to receive financial assistance. If administratively feasible and appropriate, the case manager shall be the same case manager the family was assigned in the Reach First program. The applicant for or recipient of financial assistance under this chapter shall have the burden of demonstrating the existence of his or her condition.
    2. The case manager shall meet with each participating family following any statutory or rule changes affecting the amount of the earned income disregard, asset limitations, or other eligibility or benefit criteria in the Reach Up program to inform the family of the changes and advise the family about ways to maximize the opportunities to achieve earned income without a corresponding loss of benefits.
  1. The case manager shall establish a schedule for periodic review of the family development plan. In addition, the case manager shall review, and modify if necessary, the plan in the following circumstances:
    1. there is a lack of satisfactory progress in achieving the goals of the plan;
    2. the parent or caretaker has lost unsubsidized or subsidized employment;
    3. a family member has failed to comply with a family development plan requirement or a work requirement;
    4. services required by the plan are unavailable;
    5. at least 30 days prior to when the parent or caretaker would become work-ready or would otherwise be deemed work-ready on the basis of 12-cumulative-month receipt of financial assistance;
    6. a deferment or modification of the work requirements imposed by section 1113 of this title has been requested or is due for review;
    7. within 30 days of when the parent or caretaker has started an unsubsidized or subsidized job; or
    8. changes to the plan are needed to protect the well-being of the children.
  2. The Commissioner shall adopt rules, consistent with research on best practices, establishing maximum caseloads for case managers.
  3. The Secretary of Education, with the assistance and support of the Commissioner for Children and Families, the Commissioner of Disabilities, Aging, and Independent Living, and the Commissioner of Labor, shall develop and implement comparable and reciprocally recognized literacy assessment protocols that will be used for all clients seeking adult education and literacy services; related services of the Agency of Education; or the services of the Department of Disabilities, Aging, and Independent Living, the Department of Labor, or the Department for Children and Families, when such services are being sought for the purpose of developing or strengthening competencies or skills related to the clients' current or future employment. Such protocols shall, to the extent practicable, utilize the same terminology and apply comparable criteria, consistent with individual program purposes and authorization, in determining when testing, other standardized measurement tools, or referrals to relevant professionals for evaluation or diagnosis are appropriate.
  4. The Secretary shall work cooperatively with public and private, local, and regional entities:
    1. to develop subsidized jobs with employers, using the same health and safety standards in effect for unsubsidized jobs;
    2. to develop work placements that incorporate an adult education and literacy component into the hours of work for participants who need to continue to work on their secondary education while fulfilling their work requirement;
    3. to adopt rules that set priorities for services of benefit to the people of Vermont, and that prevent displacement of previous unsubsidized workers by subsidized Reach Up program participants; and
    4. to ensure that necessary support services are available, appropriate, and within a reasonable distance, including child care, health care, and transportation.
  5. The Secretary shall:
    1. work with community providers to develop and maintain an adequate number and variety of supervised living alternatives designed to meet the individual needs of parents who are under 18;
    2. work with community providers to develop and maintain parenting, training, and education options for parents who are under 18;
    3. establish and maintain an information program to enable parents to learn about and take advantage of benefits and services that are available to parents who work outside the home;
    4. increase public awareness of the federal and State earned income tax credits, and encourage families who may be eligible to apply for such tax credits; and
    5. in partnership with the Human Resources Investment Council, develop and maintain one or more job training and employment programs for noncustodial parents to encourage long-term economic self-sufficiency and, by extension, their ability to pay child support.

      Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 174 (Adj. Sess.), § 83; 2007, No. 30 , § 7, eff. May 17, 2007; 2013, No. 50 , § E.323; 2013, No. 92 (Adj. Sess.), § 292, eff. Feb. 14, 2014; 2013, No. 131 (Adj. Sess.), § 26, eff. May 20, 2014; 2013, No. 198 (Adj. Sess.), § 2; 2017, No. 109 (Adj. Sess.), § 2.

History

2007. Redesignated subsecs. (d) through (g) as subsecs. (c) through (f) to conform to V.S.A. style.

Revision note - In subsec. (a), substituted "chapter" for "title" in the last sentence to correct an error in reference.

2005 (Adj. Sess.). The text of subsec. (e) is based on the harmonization of two amendments. During the 2005 session, this section was amended twice, by Act Nos. 103 and 174, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2005 session, the text of Act Nos. 103 and 174 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments--2017 (Adj. Sess.). Subdiv. (a)(2): Deleted former subdiv. (2) and redesignated former subdiv. (3) as present subdiv. (2).

Amendments--2013 (Adj. Sess.). Subdivs. (a)(2)(D), (a)(3): Added by Act No. 198.

Subsec. (d): Act No. 92 substituted "Secretary of Education" for "commissioner of education" and "Agency of Education" for "department of education".

Subsec. (d): Act No. 131 substituted "Secretary of Education" for "Commissioner of Education" preceding ", with the assistance" and substituted "adult education and literacy" for "adult basic education" following "clients seeking".

Subdiv (e)(2): Act No. 131 substituted "adult education and literacy" for "adult basic education" following "incorporate an".

Amendments--2013 Added subdiv. (a)(1) designation and added subdiv. (a)(2).

Amendments--2007. Subsec. (a): Amended generally

Subsec. (b): Deleted.

Subsec. (c): Redesignated as present subsec. (b), deleted the first sentence, and deleted "that includes personal contact with the participant at least once per month" following "plan" in the second sentence. Inserted "become work-ready or would" preceding "otherwise" in subdiv. (b)(5) and inserted "or is due for review" following "requested" in subdiv. (b)(6).

Amendments--2005 (Adj. Sess.). Subsec. (e): Act 103 substituted "commissioner of labor" for "commissioner of employment and training" and "department of labor" for "department of employment and training".

Subsec. (e): Act No. 174, substituted "for children and families" for "of prevention, assistance, transition, and health access" in two places and "labor" for "employment and training" in two places; deleted "aging and" preceding "disabilities" the first time it appears and inserted "aging, and independent living" following "disabilities", and substituted "disabilities, aging, and independent living" for "aging and disabilities" following "or the services of the department".

§ 1108. Limits on family financial assistance.

  1. Except for grants to children in the care of persons other than their parents, only participating families who have received fewer than 60 cumulative months of financial assistance, including those months in which any type of cash assistance funded by a TANF block grant was received in other states or territories of the United States, shall be eligible for benefits under the Reach Up program.
  2. Deferment granted for the following reasons shall not count toward the Reach Up program's cumulative 60-month lifetime eligibility period:
    1. the participant is not able-to-work;
    2. the participant is a parent or caretaker who is caring for a child during the first year of a possible two-year deferment pursuant to subdivision 1114(b)(3) of this chapter;
    3. the participant is affected by domestic violence pursuant to subdivision 1114(b)(9) of this chapter; and
    4. the participant is needed in the home on a full-time basis to care for an ill or disabled parent, spouse, or child pursuant to subdivision 1114(b)(5) of this chapter.
  3. The cumulative 60-month lifetime eligibility period shall not begin to toll until the parent or parents of a participating family have reached the age of 18.
  4. Notwithstanding subsection (a) of this section, a participating family that does not have a qualifying deferment under section 1114 of this title and that has exceeded the cumulative 60-month lifetime eligibility period set forth in subsection (a) of this section shall qualify for a hardship exemption that allows the adult member of the participating family to receive:
    1. a wage equivalent to that of the participating family's cash benefit under the Reach Up program for participation in any of the work activities listed in subdivision 1101(28) of this title, with the exception of subdivision (28)(L); or
    2. supplemental benefits to the wages of the adult member of the participating family if the work requirement is otherwise being met.

      Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2007, No. 30 , § 8, eff. May 17, 2007; 2013, No. 50 , § E.323.1, eff. May 1, 2014; 2015, No. 172 (Adj. Sess.), § E.323.

History

Revision note. Substituted "chapter" for "title" following "authorized by this" in the last sentence to correct an error in the reference.

Amendments--2015 (Adj. Sess.). Subdiv. (d)(1): Substituted "any of the work activities listed in subdivision 1101(28) of this title, with the exception of subdivision (28)(L)" for "community service employment".

Amendments--2013 Substituted "Limits on family financial assistance" for "Obligation to assist eligible families with dependent children" in section heading; deleted the former introductory paragraph; and added subsecs. (a) through (d).

Amendments--2007. Substituted "financial assistance" for "aid" throughout.

Subchapter 2. Reach Up Program Family Development Plan and Work Requirements

§ 1112. Family development plan requirements.

  1. Each participating adult in a family applying for or receiving financial assistance shall comply with each Reach Up family development plan requirement provided for in the family development plan, unless good cause exists for such noncompliance as defined by the Commissioner by rule.
  2. The family's receipt of the full financial assistance amount allowable and avoidance of fiscal sanctions are contingent on the participating adult assisting in the development of his or her family development plan and engaging in the family development plan activities for the number of hours per week that the activities are scheduled and available, unless good cause exists for not doing so as defined by the Commissioner by rule.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2007, No. 30 , § 9, eff. May 17, 2007.

History

Amendments--2007. Subsec. (b): Amended generally.

Amendments--2005 (Adj. Sess.) Substituted "department of labor" for "department of employment and training" in subdivs. (b)(1)-(4) and (b)(7).

§ 1113. Work requirements.

  1. Each participating adult in a family receiving a financial assistance grant shall fulfill a work requirement in accordance with this section. Subject to the provisions of this chapter, and provided that all services required by this chapter are offered when appropriate and are available when needed to support fulfillment of the work requirement, an adult having a work requirement shall obtain employment or participate in one or more work activities, and shall work in accordance with the requirements of this section, in order to maintain continued eligibility for financial assistance and to avoid fiscal sanctions.
    1. The work requirement shall become effective as soon as the participating adult is work-ready, or upon the family's receipt of 12 cumulative months of financial assistance, whichever is sooner, unless at the end of the 12-cumulative-month period the participant's case manager concludes that the participant is unable to meet the hours of the applicable unmodified work requirement, as established in subsection (c) of this section. In such cases, the case manager shall prepare a written request on behalf of the participant for an extension of up to six months. The request shall identify the particular reasons why the participant is unable to meet the work requirement and the remedial actions and services to be provided to the recipient to enable fulfillment of the requirement. The request shall be submitted to the Commissioner or the Commissioner's designee for approval. The request shall be approved unless the participant is able to meet the work requirement or a modified work requirement established in accordance with section 1114 of this title. (b) (1)  The work requirement shall become effective as soon as the participating adult is work-ready, or upon the family's receipt of 12 cumulative months of financial assistance, whichever is sooner, unless at the end of the 12-cumulative-month period the participant's case manager concludes that the participant is unable to meet the hours of the applicable unmodified work requirement, as established in subsection (c) of this section. In such cases, the case manager shall prepare a written request on behalf of the participant for an extension of up to six months. The request shall identify the particular reasons why the participant is unable to meet the work requirement and the remedial actions and services to be provided to the recipient to enable fulfillment of the requirement. The request shall be submitted to the Commissioner or the Commissioner's designee for approval. The request shall be approved unless the participant is able to meet the work requirement or a modified work requirement established in accordance with section 1114 of this title.
    2. A participant may meet the work requirement through a combination of work activities until the participant has received 24 months of financial assistance. After that time, the participant shall meet the work requirement through employment.
  2. A participating family shall be deemed to meet the work requirement if:
    1. In two-parent families in which neither parent receives Supplemental Security Income (SSI), a combined total of at least 35 hours a week of employment or work activities or the number of hours the parents have been determined able-to-work by the Department is completed. One or both parents may contribute to the completion of the employment or work activities required by this subdivision.
    2. In a two-parent family in which one parent receives SSI:
      1. If the family includes a child six years of age or older, the work-eligible parent shall participate in one or more work activities for at least 30 hours per week or the number of hours the parent has been determined able-to-work by the Department.
      2. If the family includes a child under six years of age, the work-eligible parent shall participate in one or more work activities for at least 20 hours per week or the number of hours the parent has been determined able-to-work by the Department.
      3. As used in this subdivision (c)(2), "work-eligible parent" means a parent who is not receiving SSI.
    3. In a single-parent family:
      1. If the family's youngest child is six years of age or older, the participant shall participate in one or more work activities for at least 30 hours per week or the number of hours the parent has been determined able-to-work by the Department.
      2. If the family's youngest child is under six years of age, the participant shall participate in one or more work activities for at least 20 hours per week or the number of hours the parent has been determined able-to-work by the Department.
    4. A pregnant individual who is employed shall continue such employment unless there has been a medical determination that the individual is unable-to-work, or the individual is exempt from the work requirement based on other criteria established by the Commissioner by rule. A pregnant individual shall not be required to begin new employment.
    1. A participant required to fulfill a work requirement shall accept any unsubsidized job he or she is capable of performing, even if it pays wages that are less than the financial assistance grant. In cases in which monthly wages are less than the financial assistance grant and the family is otherwise eligible, the wages shall be supplemented with a partial financial assistance grant. The Commissioner shall establish by rule criteria for jobs that must be accepted if offered, including the criterion that each job must pay at least minimum wage. (d) (1)  A participant required to fulfill a work requirement shall accept any unsubsidized job he or she is capable of performing, even if it pays wages that are less than the financial assistance grant. In cases in which monthly wages are less than the financial assistance grant and the family is otherwise eligible, the wages shall be supplemented with a partial financial assistance grant. The Commissioner shall establish by rule criteria for jobs that must be accepted if offered, including the criterion that each job must pay at least minimum wage.
    2. A participating adult who had wages in the three months prior to his or her application for financial assistance that, when annualized, equal or exceed 150 percent of the federal poverty level applicable to the participating adult's family shall not be required to accept employment with annualized earnings of less than 150 percent of the federal poverty level applicable to the participating adult's family for the three-month period after being deemed eligible for financial assistance, provided that the participant:
      1. has not been disqualified within the prior six months from receiving unemployment compensation benefits for failing, without good cause, either to apply for available, suitable work when so directed by the employment office or the Commissioner of Labor, or to accept suitable work when offered;
      2. is not sanctioned within the three-month period immediately following being deemed eligible for financial assistance;
      3. does not leave an unsubsidized job without good cause within the three-month period immediately following being deemed eligible for financial assistance;
      4. follows through in a satisfactory manner on all referrals to employment opportunities;
      5. is engaged in acceptable work activities in accordance with this section; and
      6. agrees to accept any unsubsidized job if still unemployed after completion of the three-month period immediately following the determination of eligibility to receive financial assistance.
    3. A postsecondary education program participant who has received a degree and any Reach Up participant who has recently completed specialized vocational training shall not be required to accept an unsubsidized job that is unrelated to his or her training or degree for the three-month period immediately following completion of such education or training, provided that the participant:
      1. is not sanctioned within that three-month period;
      2. does not leave an unsubsidized job related to his or her training or degree without good cause within that three-month period;
      3. follows through in a satisfactory manner on all referrals to employment opportunities related to his or her training or degree;
      4. is engaged in acceptable work activities in accordance with this section; and
      5. agrees to accept any unsubsidized job if still unemployed after such three-month period.
  3. The Commissioner may require a participant to participate in a job search, coordinated by the Commissioner, for the number of hours per week that corresponds to the participant's work requirement hours under subsection (c) of this section, or a lesser amount that in combination with the participant's unsubsidized employment equals the participant's work requirement hours under subsection (c) of this section.
  4. Notwithstanding any other provision of this chapter, a participant's hours of unpaid work activities that are not primarily education, job search, job readiness, or training activities shall not exceed the levels established by the Fair Labor Standards Act. Adjustments required to conform with the Fair Labor Standards Act shall be made pursuant to calculation standards established by the Commissioner by rule.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2007, No. 30 , § 10, eff. May 17, 2007; 2013, No. 131 (Adj. Sess.), § 27, eff. May 20, 2014; 2017, No. 109 (Adj. Sess.), § 3.

History

Reference in text. The Fair Labor Standards Act, referred to in subsec. (f), is codified as 29 U.S.C. § 201 et seq.

Revision note. In subsecs. (a) and (g), substituted "chapter" for "title" wherever it appeared to correct errors in the references.

Amendments--2017 (Adj. Sess.). Subsec. (c): Amended generally.

Amendments--2013 (Adj. Sess.). Subdiv. (b)(1): Substituted "Commissioner or the Commissioner's designee" for "district director and Commissioner" following "submitted to the".

Subdiv. (c)(3): Inserted "who are" following "subsection or".

Subsec. (e): Inserted "a" preceding "job search".

Subsec. (f): Substituted "job readiness, or training activities" for "job readiness activities, or training" following "job search,".

Amendments--2007. Section amended generally.

§ 1114. Deferments, modifications, and referral.

  1. The Commissioner shall establish by rule criteria, standards, and procedures for granting deferments from or modifications to the work requirements established in section 1113 of this title, in accordance with the provisions of this section and for referring individuals with disabilities to the Office of Vocational Rehabilitation.
  2. The work requirements shall be either modified or deferred for:
    1. A participant for whom no unsubsidized or subsidized job or other equivalent supervised work activity recognized by the Commissioner by rule is available.
    2. A participant for whom support services that are essential to employment and other work activities and identified in the family development plan cannot be arranged. Such services shall include case management, education and job training, child care, and transportation.
    3. A primary caretaker parent in a two-parent family in which one parent is able-to-work-part-time or unable-to-work, a single parent, or a caretaker who is caring for a child who has not attained 24 months of age for no more than 24 months of the parent's or caretaker's lifetime receipt of financial assistance. To qualify for such deferment, a parent or caretaker of a child older than the age of six months but younger than 24 months shall cooperate in the development of and participate in a family development plan.
    4. An individual who has exhausted the 24 months of deferment provided for in subdivision (3) of this subsection and who is caring for a child who is not yet 13 weeks of age or a primary caretaker parent in a family with two parents who are able-to-work if the primary caretaker is caring for a child under 13 weeks of age and is otherwise subject to a work requirement because the other parent in the family is being sanctioned in accordance with section 1116 of this title.
    5. A participant who is needed in the home on a full- or part-time basis in order to care for an ill or disabled parent, spouse, or child. In granting deferments, the Department shall fully consider the participant's preference as to the number of hours the participant is able to leave home to participate in work activities. A deferral or modification of the work requirement exceeding 60 days due to the existence of illness or disability pursuant to this subdivision shall be confirmed by the independent medical review of one or more physicians, physician assistants, advanced practice registered nurses, or other health care providers designated by the Secretary of Human Services prior to receipt of continued financial assistance under the Reach Up program.
    6. A participant who is under 20 years of age, who is a single head of household or married, and who maintains satisfactory attendance at secondary school or the equivalent during the month, or participates in education directly related to employment for an average of 20 or more hours per week during the month.
    7. A participant who has attained 20 years of age and who is engaged in at least 15 hours per week of classes and related learning activities for the purpose of attaining a high school diploma or General Educational Development (GED) certificate or completing a literacy program approved by the Department; provided that the participant is making satisfactory progress toward the attainment of the diploma or certificate; and provided further that a deferment or modification granted for this purpose does not exceed 18 months.
    8. A participant who is enrolled in, attending, and making satisfactory progress toward the completion of a full-time vocational training program that has a normal duration of no more than two years and who is within 12 months of expected completion of such program. Such deferment or modification shall continue until he or she has completed the program, he or she is no longer attending the program, or the 12-month expected completion period has ended, whichever occurs first.
    9. A participant for whom, due to the effects of domestic violence, fulfillment of the work requirement can be reasonably anticipated to result in serious physical or emotional harm to the participant that significantly impairs his or her capacity either to fulfill the work requirement or to care for his or her child adequately, or can be reasonably anticipated to result in serious physical or emotional harm to the child.
    10. Any other participant designated by the Commissioner in accordance with criteria established by rule.
  3. A participant who is able-to-work-part-time or is unable-to-work shall be referred for assessment of the individual's skills and strengths, accommodations and support services, and vocational and other services in accordance with the provisions of his or her family development plan. The work requirement hours shall reflect the individual's ability to work. Participants with disabilities that do not meet the standards used to determine disability under Title XVI of the Social Security Act shall participate in rehabilitation, education, or training programs as appropriate. A participant who qualifies for a deferment or modification and who is able-to-work-part-time shall have his or her work requirement hours modified or deferred. In granting deferments, the Department shall fully consider the participant's estimation of the number of hours the participant is able-to-work.
  4. Absent an apparent condition or claimed physical, emotional, or mental condition, participants are presumed to be able-to-work. A participant shall have the burden of demonstrating the existence of the condition asserted as the basis for a deferral or modification of the work requirement. A deferral or modification of the work requirement exceeding 60 days due to the existence of conditions rendering the participant unable-to-work shall be confirmed by the independent medical review of one or more physicians, physician assistants, advanced practice registered nurses, or other health care providers designated by the Secretary of Human Services prior to receipt of continued financial assistance under the Reach Up program.
  5. Deferments and modifications granted pursuant to this section shall continue for as long as the grounds for the deferment or modification exist or until expiration of a related time period specified in subsection (b) of this section, whichever occurs first.
  6. As used in this section, "health care provider" means a person, partnership, or corporation, other than a facility or institution, licensed or certified or authorized by law to provide professional health care service in this State to an individual during that individual's medical care, treatment, or confinement.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2007, No. 30 , § 11, eff. May 17, 2007; 2013, No. 50 , § E.323.2, eff. May 28, 2013; 2013, No. 179 (Adj. Sess.), § E.321.2; 2017, No. 109 (Adj. Sess.), § 4.

History

Reference in text. Title XVI of the Social Security Act, referred to in subsec. (c), is codified as 42 U.S.C. § 1381 et seq.

Amendments--2017 (Adj. Sess.). Subdiv. (b)(7): Substituted "15" for "25" preceding "hours"; inserted "or completing a literacy program approved by the Department" following "certificate"; substituted "the" for "such" preceding "diploma" and "18" for "six" preceding "months".

Amendments--2013 (Adj. Sess.). Subdiv. (b)(5) and subsec. (d): Inserted ", physician assistants, advanced practice registered nurses, or other health care providers" following "of one or more physicians".

Subsec. (f): Added.

Amendments--2013 Added the third sentence in subdiv. (b)(5), deleted "circumstance or" preceding "condition" in subsec. (d) and added the third sentence in subsec. (d).

Amendments--2007. In the section heading, deleted "and" following "Deferments" and inserted "and referral" following "modifications"; inserted "and for referring individuals with disabilities to the office of vocational rehabilitation" following "section" at the end of subsec. (a); deleted former subdiv. (b)(3) and redesignated former subdivs. (b)(4)-(b)(11) as present subdivs. (b)(3)-(b)(10); substituted "(3)" for "(4)" following "subdivision" in subdiv. (b)(4); and added the second sentence in subdiv. (b)(5); added present subsec. (c) and redesignated former subsec. (c) as present subsec. (d), and deleted former subsec. (d) in its entirety.

§ 1115. Obligation to fund services; good cause.

  1. A participant's family development plan requirement under section 1112 of this title and work requirement under section 1113 of this title shall be deferred when the case management services, training and educational services, and the family support services identified in the participant's family development plan are unavailable for reasons beyond the control of the participant, including when monies appropriated are not sufficient to provide such services.
  2. No family who has been determined to be eligible for child care services pursuant to section 3512 of this title shall be displaced from or denied receipt of such services because the requirements of this chapter result in additional participating families applying for and receiving financial assistance for such child care services.
  3. Services related to child care that are provided to two-parent families in which both parents are able-bodied and who are determined to be eligible for services pursuant to section 3512 of this title shall be paid from nonfederal funds.
  4. The Commissioner shall design the Reach Up program so that it provides access to a full array of services to participating families identified by their family development plans within the funds appropriated by the General Assembly.
  5. The Commissioner shall establish good cause rules for temporary or unexpected conditions or circumstances beyond the control of the participating parent that result in a parent's inability to participate in a Reach Up family development plan requirement, to participate in a work requirement, or to accept or retain employment.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001.

History

Revision note. In subsec. (b), substituted "chapter" for "title" following "requirements of this" to correct an error in the reference.

§ 1116. Sanctions.

  1. The financial assistance grant of a participating family shall be reduced, in accordance with the provisions of this section, if a participating adult fails without good cause to fully comply or continue to comply in full with the family development plan or work requirements in sections 1112 and 1113 of this title.
  2. Prior to the reduction in a family's financial assistance grant resulting from a sanction imposed under this section, the Department shall provide an independent review of the participant's circumstances and the basis for his or her noncompliance. The Commissioner or the Commissioner's designee shall perform the review.
    1. For a first, second, and third month in which a participating adult is not in compliance with a family development plan or work requirement and has not demonstrated good cause for such noncompliance, the family's financial assistance grant shall be reduced by the amount of $75.00 for each adult sanctioned. (c) (1)  For a first, second, and third month in which a participating adult is not in compliance with a family development plan or work requirement and has not demonstrated good cause for such noncompliance, the family's financial assistance grant shall be reduced by the amount of $75.00 for each adult sanctioned.
    2. For the fourth and any subsequent month not subject to the reduction required by subsection (e) of this section in which a participating adult is not in compliance with a family development plan or work requirement and has not demonstrated good cause for such noncompliance, the family's financial assistance grant shall be reduced by the amount of $150.00 for each adult sanctioned.
  3. A participant may cure a sanction by coming into compliance in accordance with the Department's rules. During the first 60 months of the family's receipt of financial assistance, a participating adult may have all previous sanctions forgiven by demonstrating 12 consecutive months of compliance with family development plan requirements or work requirements or any combination of the two. Subsequent acts of noncompliance after a sanctioned adult has completed a successful 12-month sanction forgiveness period will be treated in accordance with subdivisions (c)(1) and (2) of this section without consideration of the sanctions that have been forgiven.
  4. [Repealed.]
    1. Under no circumstances during the first six months that a family's grant is reduced due to fiscal sanctions imposed pursuant to subsection (c) of this section shall the grant be reduced to less than an amount that in combination with the family's other countable income is less than the family's actual incurred housing costs up to the applicable maximum housing allowance. (f) (1)  Under no circumstances during the first six months that a family's grant is reduced due to fiscal sanctions imposed pursuant to subsection (c) of this section shall the grant be reduced to less than an amount that in combination with the family's other countable income is less than the family's actual incurred housing costs up to the applicable maximum housing allowance.
    2. The Commissioner shall provide the housing costs by electronic or direct payment to the person to whom housing costs are owed. Any balance of financial assistance remaining after the electronic or direct payment has been deducted shall be paid in two payments, the first to be paid within the first half of the calendar month and the second to be paid within the second half of the calendar month.
  5. The financial assistance grant of a family that has been subject to a fiscal sanction for more than six cumulative months shall be reduced in accordance with the full sanction amounts and without any consideration of the housing costs protection established in subsection (f) of this section. This section shall not apply if the family, after the fiscal sanction period of more than six months, has an intervening period of no less than 36 months before another fiscal sanction and spends those months in a state of program compliance, grant closure, or any combination of the two.
  6. To receive payments during the fiscal sanction period, an adult who is the subject of the sanction shall meet no less than once each month to report his or her circumstances to the case manager or to participate in assessments as directed by the case manager. In addition, this meeting shall be for initial assessment and development of the family development plan when such tasks have not been completed; reassessment or review and revision of the family development plan, if appropriate; and to encourage the participant to fulfill the work requirement. Meetings required under this section may take place in the district office, a community location, or in the participant's home. Facilitation of meeting the participant's family development plan goals shall be a primary consideration in determining the location of the meeting. The Commissioner may waive any meeting when extraordinary circumstances prevent a participant from attending. The Commissioner shall adopt rules to implement this subsection.
  7. A family sanctioned under this section for failure to meet work or family development plan requirements shall remain eligible for Supplemental Nutrition Assistance Program benefits and shall not, because of such failure, be sanctioned under the Supplemental Nutrition Assistance Program for reasons of "failure to comply without good cause" and "voluntary quit without good cause," provided that such eligibility and waivers of such sanctions are consistent with federal law and regulations governing the Supplemental Nutrition Assistance Program.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2007, No. 30 , §§ 12, 13, eff. May 17, 2007; 2009, No. 156 (Adj. Sess.), §§ E.323.1, E.323.2; 2011, No. 63 , §§ C.105, C.105.1, eff. June 2, 2011; 2013, No. 50 , § E.323.4, eff. May 1, 2014; 2013, No. 131 (Adj. Sess.), § 28, eff. May 20, 2014; 2015, No. 23 , § 53.

History

Amendments--2015. Subsec. (d): Substituted "subdivisions (c)(1) and (2)" for "subdivisions (c)(1) through (5)" in the last sentence.

Amendments--2013 (Adj. Sess.). Subsec. (b): Substituted "Commissioner" for "district director" twice.

Subsec. (i): Substituted "Supplemental Nutrition Assistance Program benefits" for "Food Stamps" following "eligible for" and "Supplemental Nutrition Assistance Program" for "Food Stamp program" twice.

Amendments--2013 Subsec. (e): Repealed.

Amendments--2011. Subdiv. (c)(1): Deleted the subdiv. (A) designation, inserted ", second, and third" following "first" and deleted subdivs. (B) and (C).

Subsec. (h): Deleted the subdiv. (1) designation and deleted subdiv. (2).

Amendments--2009 (Adj. Sess.) Subdiv. (c)(1): Designated the existing provisions of the subdivision as subdiv. (A), and added subdivs. (B) and (C), and in subdiv. (A), deleted "second and third" preceding "month" in the first sentence.

Subsec. (h): Designated the existing provisions of the subsection as subdiv. (1) and added subdiv. (2).

Amendments--2007. Subdiv. (f)(2): Substituted "electronic or direct" for "vendor" preceding "payment" in the first and second sentences; deleted "directly" following "payment" and substituted "person to whom housing costs are owed" for "vendor" in the first sentence.

Subsec. (h): Inserted "or to participate in assessments as directed by the case manager" following "manager" at the end of the first sentence and added the present third sentence.

Subchapter 3. Separate State Programs

§ 1121. Authorization to segregate State funds and create separate State and solely State-funded programs.

  1. Consistent with the purposes of this chapter, the Commissioner shall structure payment of appropriated TANF funds, State "maintenance of effort" funds, and general funds to create separate State and solely State-funded programs to aid families eligible for the financial assistance. For purposes of this chapter:
    1. "Separate State program" means a program in which State funds are used to fund the program, and these funds are counted toward the State's maintenance-of-effort requirement under TANF.
    2. "Solely State-funded program" means a program in which State funds are used to fund the program and are not counted toward the State's maintenance-of-effort requirement in order to maintain flexibility.
  2. The Commissioner shall establish by rule standards, requirements, and criteria for the administration of any program established pursuant to this section that requires rules different from the financial assistance program.
  3. Programs and payment structures created pursuant to this section shall accomplish one or more of the following purposes:
    1. to provide work supports and assistance to working families while preserving their ability to receive financial assistance beyond the federal TANF 60-month lifetime limit;
    2. to foster parental nurturing of children in their own homes;
    3. to stabilize families in crisis;
    4. to preserve financial assistance options beyond the federal TANF 60-month lifetime limit for families addressing multiple issues relating to self-sufficiency;
    5. to preserve eligibility for financial assistance for certain parents who are under 18 and legal aliens whom federal law makes ineligible for TANF-funded assistance; or
    6. to ensure that the State complies with the federal TANF program requirements and is able to avoid federal fiscal sanctions.
    1. The following solely State-funded programs shall be established, in accordance with rules adopted by the Commissioner: (d) (1)  The following solely State-funded programs shall be established, in accordance with rules adopted by the Commissioner:
      1. the Postsecondary Education Program established under section 1122 of this title;
      2. a program for families with a single parent, a caretaker, or two parents with one parent who is able-to-work-part-time or unable-to-work that have a primary caretaker of a child under 24 months of age who chooses pursuant to subsection 1114(b) of this title to defer the work requirement and to remain at home caring for the child, provided that the deferment is limited to any 24 months over the primary caretaker's lifetime, and the elimination of such work requirement is not a State option under TANF; and
      3. a program for the following vulnerable families:
        1. a minor parent who is not meeting the TANF requirements; and
        2. families who have received TANF-funded assistance for over 60 months and do not qualify for the hardship exemption as provided for by rule.
    2. Solely State-funded programs may be established, in accordance with rules adopted by the Commissioner, for the following individuals:
      1. families in which the parents or caretakers are ineligible immigrants, who are considered work-eligible under federal law but are unable to meet the number of hours in work activities required for the family to be counted as meeting the work requirement under federal law;
      2. adults who have been in sanction for more than three months;
      3. families in which the parents have disabilities;
      4. families in which one or more child has a disability and in which a family member is considered a work-eligible individual;
      5. families in which the parents or caretakers have an application pending for Supplemental Security Income; and
      6. two-parent households who are unable to meet the number of hours in work activities required for the family to be counted as meeting the work requirement under federal law, unless the federal law allows the State to exclude these families from the work participation rate or provides for an achievable work participation rate as determined by the Commissioner.
  4. The Reach Ahead program shall be a separate State program structured to pay appropriated State maintenance of effort funds to families in which the parent or caretaker is engaged in employment for the number of hours that meets the applicable TANF participation rate requirement.
  5. The Commissioner may establish other separate State and solely State-funded programs necessary to meet the goals established in this chapter.
    1. Any family receiving or applying for Reach Up financial assistance who is being referred by the Department to apply for or who is applying for Supplemental Security Insurance (SSI) or aid to the aged, blind, or disabled (AABD) under chapter 13 of this title shall authorize the Department to reimburse the State for the amounts described in subdivision (2) of this subsection from any initial SSI payment owed the individual that includes SSI payment for retroactive amounts. The family shall authorize the Social Security Administration to send the initial SSI payment directly to the Department. The Department may require an individual to sign a recovery of financial assistance agreement as authorization. (g) (1)  Any family receiving or applying for Reach Up financial assistance who is being referred by the Department to apply for or who is applying for Supplemental Security Insurance (SSI) or aid to the aged, blind, or disabled (AABD) under chapter 13 of this title shall authorize the Department to reimburse the State for the amounts described in subdivision (2) of this subsection from any initial SSI payment owed the individual that includes SSI payment for retroactive amounts. The family shall authorize the Social Security Administration to send the initial SSI payment directly to the Department. The Department may require an individual to sign a recovery of financial assistance agreement as authorization.
    2. The Department may deduct an amount equal to the State-funded Reach Up financial assistance paid to the family for the needs of the SSI applicant during the period or periods in which the family received Reach Up financial assistance paid for with State funds. The deduction shall be for no more than the prorated portion of Reach Up financial assistance provided for those family members receiving SSI who are included in the SSI grant. The Department shall send any remainder due to the family within 10 days of receiving the payment from the Social Security Administration.
  6. In furtherance of the policy goals of this section and in order to establish an excess of maintenance-of-effort State funds, the Commissioner shall maximize maintenance-of-effort State funds in the reports to the U.S. Administration for Children and Families.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2007, No. 30 , § 14, eff. May 17, 2007; 2009, No. 67 (Adj. Sess.), § 91, eff. Feb. 25, 2010; 2011, No. 63 , § E.323.

History

Reference in text. The Supplemental Security Income, referred to in subdiv. (d)(2)(E), is codified as 42 U.S.C. § 1381 et seq.

Revision note. In subsec. (a), substituted "chapter" for "title" to correct an error in the reference.

Amendments--2011. Added subsec. (g) and redesignated former subsec. (g) as present subsec. (h).

Amendments--2009 (Adj. Sess.). Subsec. (e): Deleted "unsubsidized" preceding "employment".

Amendments--2007. Section amended generally.

§ 1122. Postsecondary Education Program.

  1. The Commissioner shall establish by rule a solely State-funded program to provide financial assistance equivalent to the Reach Up financial assistance amount the family would receive if it were participating in the Reach Up program and support services to enable parents in eligible families to pursue undergraduate postsecondary degrees in fields directly related to employment.
  2. The Program authorized by this section shall be administered by the Commissioner or by a contractor designated by the Commissioner. The Program shall be supported with funds other than federal TANF block grant funds provided under Title IV-A of the Social Security Act, except that the Commissioner may fund financial assistance grants and support services of families participating in the Postsecondary Education Program with TANF block grant or State maintenance of effort funds when the participating adult's educational activities are a countable work activity under federal law and when it will further one or more of the purposes in subdivision 1121(c)(1) of this title.
  3. Financial eligibility for the Program and the amount of financial assistance shall be determined using Reach Up financial assistance rules. The Commissioner may use Reach Up rules for the Postsecondary Education Program with the exception of rules inconsistent with this section or related to the work requirements.
  4. To be financially eligible to participate in the Postsecondary Education Program, the family's gross income minus the participating parent's earnings shall not exceed 150 percent of the federal poverty level for the appropriate family size.
  5. All financially eligible families who apply to participate in the Postsecondary Education Program will be considered for admission provided that they meet all of the following criteria:
    1. No more than one parent per family may participate at the same time.
    2. If the participating parent is in a two-parent family, the nonparticipating parent shall, if able-to-work, be working full-time; if able-to-work-part-time, shall be working at least the number of hours per week that he or she has been determined able-to-work-part-time; or, if unable-to-work, may be unemployed.
      1. The participating parent has not already received a postsecondary undergraduate degree. (3) (A) The participating parent has not already received a postsecondary undergraduate degree.
      2. The participating parent has already received a postsecondary undergraduate degree and the occupations for which it prepared the participating parent are obsolete.
      3. The participating parent, due to a disability, is no longer able to perform the occupations for which the degree prepared him or her.
      4. The preparation for occupations that the participating parent received through the postsecondary undergraduate degree is outdated and not marketable in the current labor market.
    3. The participating parent shall be a matriculating student in a two-year or four-year degree program as provided for in the postsecondary education plan.
    4. The participating parent has been determined to be eligible for financial assistance from the Vermont Student Assistance Corporation, and can demonstrate that he or she has the ability to cover tuition costs.
    5. The participating parent agrees to limit employment to no more than 20 hours per week when school is in session. The Department may establish exceptions by rule to allow the participating parent to work more than 20 hours per week.
    6. The family and the participating adult maintain financial eligibility for the program and uninterrupted residency in Vermont for the duration of participation in the Postsecondary Education Program.
    7. The participating parent maintains good academic standing at the college.
  6. Participation in the Program authorized by this section may be denied to parents meeting the eligibility criteria if Program funds are insufficient to allow all eligible applicants to participate. When funds are insufficient to allow all eligible applicants to participate, priority shall be given to those individuals who:
    1. have demonstrated the ability to be successful in college, have already accumulated credits that can be applied to a college degree, and qualify for financial assistance;
    2. have no postsecondary education and qualify for financial assistance;
    3. have demonstrated the ability to be successful in college, have already accumulated credits that can be applied to a college degree, and qualify for services but not financial assistance;
    4. have no postsecondary education and qualify for services but not financial assistance.
  7. Continued participation in the Postsecondary Education Program is contingent on the participating parent:
    1. maintaining compliance with all program criteria in subsections (d) and (e) of this section; and
    2. remaining a member in good standing of the college and making progress toward a degree.
  8. For the purposes of this section:
    1. "Full-time" means 40 hours per week or a position requiring no fewer than 35 hours of work per week that the employer defines as full-time.
    2. "Parent" means a biological parent, stepparent, or adoptive parent who has custody of and resides with a dependent minor child.
  9. The Department shall offer written and verbal information pertaining to postsecondary education to an appropriate Reach Up participant based on the participant's assessment.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2007, No. 30 , § 15, eff. May 17, 2007; 2009, No. 156 (Adj. Sess.), § E.323.3; 2013, No. 50 , § E.323.5.

History

Reference in text. Title IV-A of the Social Security Act, referred to in subsec. (b), is codified as 42 U.S.C. § 601 et seq.

Amendments--2013. Subsec. (i): Added.

Amendments--2009 (Adj. Sess.) Subsec. (b): Amended generally.

Amendments--2007. Section amended generally.

§ 1123. Vermont Matched Savings Program.

  1. As used in this section:
    1. "Account" means a savings account that is held in an insured financial institution that is maintained by the saver as part of an approved account program and an approved savings plan.
    2. "Agency" means the Agency of Human Services.
    3. "Approved account program" means a program approved by the Agency and administered by a service provider.
    4. "Approved savings plan" means a plan, approved by the service provider and agreed to by the saver, that defines savings goals, program requirements, and anticipated uses of the savings and matching funds. The plan shall be a contract between the saver and the service provider. The plan shall limit the maximum amount of savings that is the basis for receipt of matching funds to no more than $500.00 per saver per calendar year and $1,000.00 per family per calendar year, and to no more than $2,000.00 per lifetime of the saver and $4,000.00 per lifetime of members of a family.
    5. "Education" means a postsecondary program of instruction approved by the service provider and provided by a college, university, community college, area vocational technical school, professional institution, or specialized college or school legally authorized to grant degrees. The term also means any job training or related educational program approved by the service provider.
    6. "Eligible uses" means education, training that leads to employment, the purchase or improvement of a home, the purchase or repair of a vehicle necessary to participate in an employment-related activity, or participation in or development of an entrepreneurial activity.
    7. "Entrepreneurial activity" means the purchase of or investment in a for-profit venture in which the saver will be a principal.
    8. "Financial institution" means any insured federal or State chartered bank, bank and trust company, savings bank, savings and loan association, trust company, or credit union, approved by the service provider for the establishment of an individual development savings account.
    9. "Fund" means the Vermont Matched Savings Grant Special Fund established by this section.
    10. "Minimum savings amount" means the minimum amount of the saver's earnings established in the approved savings plan that the saver must deposit in order to be eligible for matching funds.
    11. "Program" means the Vermont Matched Savings Program established by this section.
    12. "Public assistance" means financial assistance provided by the Reach Up program or a separate State program established under the authority of section 1121 of this title.
    13. "Saver" means an individual who is 18 years of age or older, or who is under 18 years of age if the account is held in the name of a parent or caretaker of the saver, or a family group:
      1. who resides in this State;
      2. who has applied for and been enrolled in the individual development savings program;
      3. whose household income at the time of application is within the applicable financial eligible standards:
        1. to receive public assistance;
        2. to claim the federal earned income credit, without regard to any age limitation; or
        3. to participate in a federal savings program administered pursuant to this section; and
      4. whose net worth as of the calendar year preceding the determination of eligibility does not exceed $10,000.00, excluding the primary dwelling unit, one motor vehicle owned by members of the saver's family in a one-parent family or two motor vehicles owned by members of the saver's family in a two-parent family, and the tools of saver's trade that do not exceed $10,000.00 in value and that are necessary to continue or seek employment.
    14. "Service provider" means a nonprofit organization approved by the Agency that encourages and assists local community-based human service development, and that is an organization described in Section 501(c)(3) of the Internal Revenue Code of the United States that is exempt from taxation under Section 501(a) of such Code.
  2. The Agency shall establish by rule standards and procedures to implement and administer the Vermont Matched Savings Program. The Program may include a program with eligibility criteria that satisfy federal funding requirements or the requirements of other funding sources that are more restrictive than those established in subsection (a) of this section, and a program funded by State appropriations and other revenue. Such standards and procedures shall include the following:
    1. An applicant shall apply to a service provider for a determination of eligibility for enrollment in the Program. The service provider shall develop an approved savings plan with each saver who has been determined eligible and enrolled in the Program. The approved savings plan shall specify a minimum savings amount to be saved and the frequency of deposits to be made by the saver to the savings account during the duration of the plan. The application and plan shall be prepared on forms provided and approved by the service provider.
    2. The enrolled saver shall complete a financial management training program approved by the Agency and provided by or through the service provider.
    3. An enrolled saver shall open an account in a financial institution that has been approved by the service provider as a depository for the saver's contributions. The saver and the service provider shall jointly own the account, including interest earned, jointly, with the saver as primary owner.
    4. An enrolled saver with an approved plan and account monitored by a service provider shall comply with the requirements of the plan for at least one year, but no more than five years, in order to be eligible for matching fund grants.
    5. In order to obtain matching funds, the saver shall present evidence satisfactory to the service provider that the amount to be withdrawn will be expended only for an eligible use. A withdrawal from an account for an eligible use shall be made payable to the person who provides the eligible use. The Agency, or the Vermont Student Assistance Corporation pursuant to 16 V.S.A. § 2878a , shall pay matching funds to the person that provides the eligible use. Matching funds shall not be paid to the saver.
    6. The service provider may terminate an approved savings plan for a saver who fails to meet the savings goals set out in the approved plan or who withdraws from the Program, in accordance with standards and procedures established by rule by the Agency. Any funds contributed by the saver shall revert to the sole ownership of the saver, to be used by the saver for any purpose. Funds in accounts created pursuant to a Vermont Higher Education Savings Plan shall be subject to the provisions of the Plan's participation agreement.
    7. The Agency shall monitor Program participation, and shall limit additional Program participation when the funds appropriated to carry out the purposes of this section are not sufficient to support additional approved savings plans.
    8. The Agency shall establish by rule any other standards and procedures necessary or desirable to implement the Vermont Matched Savings Program, including minimum requirements for approval of savings plans, criteria for training and counseling, reporting requirements for participating financial institutions, and matching fund allocation standards.
    1. The Vermont Matched Savings Grant Special Fund is established in the State Treasury and shall be administered in accordance with the provisions of 32 V.S.A. chapter 7, subchapter 5, except that interest earned on the Fund shall be retained in the Fund. Into the Fund shall be deposited proceeds from grants, donations, contributions, appropriations, and other revenue authorized by law. The Fund shall be used only for the purpose of providing matching funds for the Vermont Matched Savings Program as established in this section, and to provide grants to service providers for administrative expenses of administering the Program. (c) (1)  The Vermont Matched Savings Grant Special Fund is established in the State Treasury and shall be administered in accordance with the provisions of 32 V.S.A. chapter 7, subchapter 5, except that interest earned on the Fund shall be retained in the Fund. Into the Fund shall be deposited proceeds from grants, donations, contributions, appropriations, and other revenue authorized by law. The Fund shall be used only for the purpose of providing matching funds for the Vermont Matched Savings Program as established in this section, and to provide grants to service providers for administrative expenses of administering the Program.
    2. The Agency may make grants from the Vermont Matched Savings Grant Special Fund to service providers to provide the match for approved savings plans with enrolled savers. The amount and number of grants shall be calculated quarterly by the Agency based on the number of savers and the amounts included in their approved plans administered by each service provider so that payment of the maximum match is ensured for all savers for the period for the approved savings plans without exceeding the balance in the Fund. The Agency may award grants from the Fund to service providers to cover their expenses of training and counseling savers and to implement and administer the Vermont Matched Savings Program. The Agency may approve the use of interest earnings on grant funds as a portion of approved administrative costs.
    3. The Agency and service providers, separately or cooperatively, may solicit grants and private contributions for the Vermont Matched Savings Grant Special Fund.
  3. Notwithstanding the provisions of subsections (a), (b), and (c) of this section to the contrary:
    1. a saver may open an account under this section as a Vermont Higher Education Savings Plan Account under 16 V.S.A. chapter 87, subchapter 7;
    2. the duration of the saver's ownership of a Vermont Higher Education Savings Plan Account shall not be subject to any limitation of time, except as provided in 16 V.S.A. chapter 87, subchapter 7; and
    3. the saver's ownership of a Vermont Higher Education Savings Plan Account shall not be included in the saver's income or resources for purposes of the saver's eligibility for TANF or SSI funds or services.

      Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2001, No. 11 , § 59, eff. April 25, 2001; 2018, No. 11 (Sp. Sess.), § E.325.1; 2019, No. 154 (Adj. Sess.), § E.323.1, eff. Oct. 2, 2020.

History

Reference in text. Section 501(c)(3) of the Internal Revenue Code and Section 501(a) of such Code, referred to in subdiv. (a)(14), are codified as 26 U.S.C. § 501(c)(3) and 26 U.S.C. § 501(a), respectively.

2013. In subsec. (a), substituted "As used in" for "For the purposes of" to conform with V.S.A. style.

Amendments--2019 (Adj. Sess.). Section heading: Substituted "Vermont Matched Savings" for "Individual Development Savings".

Subdiv. (a)(9): Substituted "Vermont Matched Savings" for "Individual Development Matching".

Subdiv. (a)(11): Substituted "Vermont Matched Savings" for "Individual Development Savings".

Subsec. (b): Substituted "Vermont Matched Savings" for "Individual Development Savings" in the first sentence of the intro. paragraph.

Subdiv. (b)(8): Substituted "Vermont Matched Savings" for "Individual Development Savings".

Subdiv. (c)(1): Substituted "Vermont Matched Savings" for "Individual Development Matching" in the first sentence and for "Individual Development Savings" in the second sentence.

Subdiv. (c)(2): Substituted "Vermont Matched Savings" for "Individual Development Matching" in the first sentence and for "Individual Development Savings" in the third sentence.

Subdiv. (c)(3): Substituted "Vermont Matched Savings" for "Individual Development Matching".

Amendments--2018 (Sp. Sess.). Subdiv. (a)(6): Inserted "training that leads to employment," following "education" and "the purchase or repair of a vehicle necessary to participate in an employment-related activity," following "home".

Amendments--2001. Subsec. (d): Added.

Subchapter 4. Administrative Provisions

§ 1131. Administrative improvements.

For the purpose of improving the family development programs administered by the departments within the Agency of Human Services, including the Reach Up program, the Secretary shall:

  1. design and implement a quality assurance function for the case management component of the Reach Up program to ensure that appropriate services are being provided to families enrolled in the program;
  2. continue to improve caseload and expenditure forecasting for all social welfare programs; and
  3. develop standards and procedures for the training, including diversity education, of qualified case managers in the Reach Up program.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001.

§ 1132. Notice and appeal.

  1. A participant may appeal the provisions of a family development plan in accordance with 3 V.S.A. § 3091 . The Commissioner shall provide notice to each participant of the standards and procedures applicable to such appeals. All federal and Agency of Human Services rules regarding conciliation, notice, hearing, and appeal shall be followed in connection with such appeals.
  2. A participant shall receive notice and an opportunity for conciliation, hearing, and appeal in accordance with all applicable federal and Agency of Human Services rules before Reach Up sanctions are applied to the participant.
  3. A participant shall continue to receive financial assistance payments pending appeal to the Human Services Board of Reach Up sanctions if the appeal is received prior to the effective date of the proposed sanctions.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001.

§ 1133. Transition to other programs.

  1. The Department shall transfer the family to Reach Up, a separate State program, or a solely State-funded program established under chapter 11 of this title if, after four months of receiving support in Reach First or sooner at the Department's discretion, a family is assessed as needing ongoing financial assistance and the family is financially eligible for Reach Up, a separate State program, or a solely State-funded program established under chapter 11 of this title, unless the family chooses not to participate.
  2. If a family finds employment meeting or exceeding the work requirements for Reach Up for the family's size and composition, but is financially eligible for Reach Up, the Department shall transfer the family to Reach Up, unless the family chooses not to participate. A family transferring from Reach First to Reach Up shall be treated as a recipient for the purposes of income calculation.
  3. If a family finds employment meeting or exceeding the work requirements for Reach Up for the family's size and composition, is not financially eligible for Reach Up, and is eligible for the Reach Ahead program, the Department shall transfer the family to Reach Ahead, unless the family chooses not to participate. A family transferring from Reach Up to Reach Ahead shall be treated as a recipient for the purposes of income calculation.
  4. A family transferring to another program under subsections (a) through (c) of this section shall not be required to complete a new application. Verification of income or other required documentation may be required as provided for by rule.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. November 1, 2000; amended 2007, No. 30 , § 16, eff. May 17, 2007; 2009, No. 67 (Adj. Sess.), § 94, eff. Feb. 25, 2010; 2013, No. 131 (Adj. Sess.), § 29, eff. May 20, 2014.

History

Revision note. In subsecs. (a) and (b), substituted "chapter" for "title" to correct errors in the references.

Amendments--2013 (Adj. Sess.). Subsec. (a): Inserted "of this title" following "chapter 11".

Amendments--2009 (Adj. Sess). Subsecs. (b) and (c): Deleted "unsubsidized" preceding "employment".

Amendments--2007. Rewrote the section.

§ 1134. Program evaluation.

On or before January 31 of each year, the Commissioner shall design and implement procedures to evaluate, measure, and report to the Governor and the General Assembly the Department's progress in achieving the goals of the programs provided for in sections 1002, 1102, and 1202 of this title. The report shall include:

  1. the types of barriers facing Reach Up families seeking economic self-sufficiency, the number of families with each type of barrier, the frequency of occurrence of each type of barrier, and how support services and incentives assist in overcoming barriers;
  2. documentation of participant results, including specific information relating to the number of persons employed, by occupation, industry, and wage; the types of subsidized and unsubsidized jobs secured by participants; any available information about results for children who have participated in the programs, including objective measures of improved conditions; the number of participating families involved in training programs; and whether the support services and incentives assist in keeping families employed;
  3. data about the Supplemental Nutrition Assistance Program participation of households who have left the programs during the last fiscal year, including the number of households, adults, and children participating in the Supplemental Nutrition Assistance Program three months after leaving the applicable program, broken down by reason for termination or leaving, and the Department's plan to identify and assist eligible households to apply for Supplemental Nutrition Assistance Program benefits;
  4. data about the enrollment of individuals who have left the programs during the last fiscal year in a Health Care Assistance Program, including the number of adults and children enrolled in a Health Care Assistance Program three months after leaving the applicable program, broken down by reason for termination or leaving, and the Department's plan to identify and assist eligible households to apply for health care assistance;
  5. a summary of all interim and final reports submitted by independent evaluation contractors to the Agency or the Department relating to the programs;
  6. a description of the work participation rates, including the method of calculating the caseload reduction credit, for the most recent federal fiscal year;
  7. a description of the current basic needs budget and housing allowance, the current maximum grant amounts, and the basic needs budget and housing allowance adjusted to reflect an annual cost-of-living increase;
  8. a description of the families, during the last fiscal year, that included an adult family member receiving financial assistance for 60 or more months in his or her lifetime, including:
    1. the number of families and the types of barriers facing these families; and
    2. the number of families that became ineligible for the Reach Up program pursuant to subsection 1108(a) of this title, and the types of income and financial assistance received by those families that did not return to the Reach Up program within 90 days of becoming ineligible; and
  9. a description of the families in the postsecondary education program pursuant to section 1122 of this title, including the number of participating families and any barriers to their further participation.

    Added 1999, No. 147 (Adj. Sess.), § 1, eff. July 1, 2001; amended 2003, No. 19 , § 22, eff. May 6, 2003; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 174 (Adj. Sess.), § 84; 2007, No. 30 , § 17, eff. May 17, 2007; 2013, No. 131 (Adj. Sess.), § 30, eff. May 20, 2014; 2015, No. 11 , § 35; 2015, No. 58 , § E.323.1; 2015, No. 172 (Adj. Sess.), § E.323.1.

History

Revision note. In subsecs. (d) and (e), substituted "chapter" for "title" wherever it appeared in order to correct errors in the references.

In subdiv. (e)(3), substituted "chapter" for "act" at the end to conform to V.S.A. style.

2005 (Adj. Sess.). The text of subsec. (b) is based on the harmonization of two amendments. During the 2005 session, this section was amended twice, by Act Nos. 103 and 174, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2005 session, the text of Act Nos. 103 and 174 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments--2015 (Adj. Sess.). Subdiv. (9): Added.

Amendments--2015. Section amended generally by Act Nos. 11 and 58.

Amendments--2013 (Adj. Sess.). Subdiv. (a)(3): Substituted "Supplemental Nutrition Assistance Program" for "food stamp" twice and "Supplemental Nutrition Assistance Program benefits;" for "food stamps." at the end.

Amendments--2007. Section amended generally.

Amendments--2005 (Adj. Sess.). Subsec. (b): Act No. 103 substituted "commissioner of labor" for "commissioner of employment and training" and "department of labor" for "department of employment and training".

Act No. 174, inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities", "labor" for "employment and training" and "subsection" for "section".

Amendments--2003. Subsec. (c): Repealed.

CHAPTER 12. REACH AHEAD

Subchapter 1. Eligibility and Assistance

§ 1201. Definitions.

As used in this chapter:

  1. "Adult" means an individual who:
    1. is 18 years of age or older and not a dependent child; or
    2. is under 18 years of age and:
      1. is pregnant; or
      2. is a parent who is the caretaker for a dependent child.
  2. "Barrier" means any physical, emotional, or mental condition; any lack of an educational, vocational, or other skill or ability; and any lack of transportation, child care, housing, medical assistance or other services or resources, domestic violence circumstances, caretaker responsibilities, or other conditions or circumstances that prevent an individual from engaging in employment or other work activity.
  3. "Caretaker" means an individual age 18 or older who is fulfilling a parental role in caring for a dependent child by providing physical care, guidance, and decision making related to the child's health, school, medical care, and discipline.
  4. "Commissioner" means the Commissioner for Children and Families or his or her designee.
  5. "Department" means the Department for Children and Families.
  6. "Dependent child" means a child who is a resident of this State and:
    1. is under the age of 18 years; or
    2. is 18 years of age or older who is a full-time student in a secondary school, or attending an equivalent level of vocational or technical training, and is reasonably expected to complete the educational program before reaching the age of 19 or is not expected to complete the educational program before reaching age 19 solely due to a documented disability.
  7. "Eligible family" means a family that meets the requirements in section 1203 of this chapter.
  8. "Family" means:
    1. one or more dependent children living with one or both parents or a relative or caretaker of such children; or
    2. a pregnant individual.
  9. "Food assistance" means a monthly benefit to supplement the family's Supplemental Nutrition Assistance Program benefits as determined under section 1204 of this chapter.
  10. "Living with a relative or caretaker" means living with a caretaker or relative in a residence maintained by the caretaker or one or more relatives at his or her or their home.
  11. "Parent" means a biological parent, stepparent, adoptive parent, or pregnant individual.
  12. "Participant" or "participating adult" means an adult member of a participating family.
  13. "Participating family" means an eligible family that participates in the Reach Ahead program.
  14. "Reach Ahead services" means the service component of the Reach Ahead program consisting of case management services, support services, and referrals provided to eligible families to assist them in maintaining self-sufficiency.
  15. "Reach First" means the program established under chapter 10 of this title.
  16. "Reach Up" means the program established under chapter 11 of this title.
  17. "Relative" means a person related to a dependent child, as defined by the Department by rule.
  18. "Temporary Assistance to Needy Families" or "TANF" means the block grant provided to this State and established in accordance with Part A of Title IV of the federal Social Security Act, as amended, and the regulations promulgated under the Act by the U.S. Secretary of Health and Human Services.

    Added 2007, No. 30 , § 18, eff. Oct. 1, 2008; amended 2013, No. 131 (Adj. Sess.), § 31, eff. May 20, 2014; 2021, No. 20 , § 287.

History

Reference in text. Part A of Title IV of the Federal Social Security Act, referred to in subdiv. (18), is codified as 42 U.S.C. § 601 et seq.

Amendments--2021 Subdiv. (18): Substituted "under the Act" for "pursuant thereto" following "promulgated".

Amendments--2013 (Adj. Sess.). Subdiv. (9): Substituted "Supplemental Nutrition Assistance Program benefits" for "food stamp benefit" following "family's".

§ 1202. Purpose.

  1. The purpose of the Reach Ahead program is:
    1. to assist families who have become recently employed to maintain employment by providing work supports and incentives to maximize the opportunity of the family to remain employed and not return to Reach Up;
    2. to provide families with information and referrals to workforce development options in order to ensure financial stability for the family;
    3. to support parental responsibility and positive parental role models, both custodial and noncustodial;
    4. to improve the well-being of children by providing time-limited work supports and food assistance to their families;
    5. to conserve State and public financial resources by operating the system of aid in a manner that is efficient and avoids federal fiscal sanctions; and
    6. to conform to the federal TANF law.
  2. The critical elements of developing a work support program that assists families to maintain self-sufficiency are:
    1. if necessary, individualized case management that addresses each individual's situation and barriers to self-sufficiency and assists that family in maintaining employment;
    2. food assistance and support services of a limited duration to provide work support for the family;
    3. easy transition to other programs, such as Reach Up or Reach First, if needed to ensure the families' well-being and success to reaching self-sufficiency.

      Added 2007, No. 30 , § 18, eff. Oct. 1, 2008.

§ 1203. Eligibility.

A family shall be eligible for Reach Ahead if the family resides in Vermont and:

  1. has left Reach Up or the postsecondary education program within the prior six months for employment that meets the work requirements for the Reach Up program for the family's size and composition;
  2. is receiving Supplemental Nutrition Assistance Program benefits and has employment that meets the work requirements for Reach Up for the family's size and composition; or
  3. is an individual under 21, has a child, is ineligible for Supplemental Nutrition Assistance Program benefits solely because the individual resides with the individual's parent, and has employment that meets the work requirements for Reach Up for the family's size and composition.

    Added 2007, No. 30 , § 18, eff. Oct. 1, 2008; amended 2007, No. 192 (Adj. Sess.), § 6.012; 2009, No. 67 (Adj. Sess.), § 90, eff. Feb. 25, 2010; 2013, No. 131 (Adj. Sess.), § 32, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Subdivs. (2) and (3): Substituted "Supplemental Nutrition Assistance Program benefits" for "food stamps".

Amendments--2009 (Adj. Sess.). Subdivs. (1)-(3): Deleted "unsubsidized" preceding "employment".

Amendments--2007 (Adj. Sess.). Subdiv. (1): Deleted "and meets the financial eligibility guidelines for the Vermont Health Access Program" following "the Reach Up program for the family's size and composition".

§ 1203a. Application of 21 U.S.C. § 862a.

An individual domiciled in Vermont shall be exempt from the disqualification provided for in 21 U.S.C. § 862a .

Added 2009, No. 1 (Sp. Sess.), § E.323.2.

§ 1204. Food assistance.

    1. An eligible family shall receive monthly food assistance equal to $50.00 to be applied to the family's electronic benefit transfer (EBT) food account for the first 12 months after the family has become eligible for Reach Ahead. (a) (1)  An eligible family shall receive monthly food assistance equal to $50.00 to be applied to the family's electronic benefit transfer (EBT) food account for the first 12 months after the family has become eligible for Reach Ahead.
    2. For the 12th through 24th months, the family shall receive a monthly food assistance of $5.00.
  1. Food assistance may be used only to purchase eligible food items as defined in the Supplemental Nutrition Assistance Program federal rules and shall be disregarded as income for the purposes of determining Supplemental Nutrition Assistance Program eligibility and the amount of the Supplemental Nutrition Assistance Program benefits.
  2. An eligible family shall not be required to assign child support to the Department, and all child support received by the family shall be disregarded as income.
  3. The 12th through 24th months of assistance shall be funded through savings resulting from caseload reductions in the Reach Up program. If there are insufficient savings from caseload reductions to fund the 12th through 24th months of assistance, the assistance shall be suspended or modified.

    Added 2007, No. 30 , § 18, eff. Oct. 1, 2008; amended 2013, No. 131 (Adj. Sess.), § 33, eff. May 20, 2014; 2013, No. 198 (Adj. Sess.), § 3, eff. July 1, 2015.

History

2007 (Adj. Sess.). In subsec. (a), substituted "through" for "though" to correct a typographical error.

Amendments--2013 (Adj. Sess.). Subdiv. (a)(1): Act No. 198 substituted "$50.00" for "$100.00" following "food assistance equal to" and "12 months" for "six months" following "food account for the first".

Subdiv. (a)(2): Act No. 198 substituted "For the 12th through 24th months" for "For the seventh through 12th months" at the beginning, and "$5.00" for "$50.00" at the end.

Subsec. (b): Act No. 131 substituted "Supplemental Nutrition Assistance Program" for "food stamp" in three places.

Subsec. (d): Added by Act No. 198.

§ 1205. Required services to participating families.

  1. The Commissioner shall provide participating families Reach Ahead services, case management services if necessary, and referral to any agencies or programs, including workforce development, that provide the services needed by participating families to improve the family's prospects for employment retention. Reach Ahead services shall be provided for 24 months.
  2. A participating family shall be eligible for an Enhanced Child Care Services Subsidy during its 12th through 24th months on the Reach Ahead program pursuant to subsection 3512(b) of this title.

    Added 2007, No. 30 , § 18, eff. Oct. 1, 2008; amended 2013, No. 198 (Adj. Sess.), § 6, eff. July 1, 2015.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Added the subsection designation and substituted "24 months" for "12 months" at the end.

Subsec. (b): Added.

§ 1206. Case management; family development plans; coordinated services.

The Commissioner may provide Reach Ahead services to participating families through a case management model. If a family needs case management, the Commissioner may develop a family development plan as provided for in chapters 10 and 11 of this title. If a case manager is assigned to the participating family who has been transferred from Reach First or Reach Up, if practicable, the case manager shall be the same case manager the family was assigned previously.

Added 2007, No. 30 , § 18, eff. Oct. 1, 2008.

Subchapter 2. Administrative Provisions

§ 1211. Recertification.

A family's hours of employment and other countable work activities shall be verified every six months to determine continuing eligibility for the program. To the extent possible for families receiving Supplemental Nutrition Assistance Program benefits, income verification may be done at the same time as the Supplemental Nutrition Assistance Program benefit recertification or verification of employment hours.

Added 2007, No. 30 , § 18, eff. Oct. 1, 2008; amended 2007, No. 192 (Adj. Sess.), § 6.013; 2013, No. 131 (Adj. Sess.), § 34, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Substituted "Supplemental Nutrition Assistance Program benefit" for "food stamps" twice.

Amendments--2007 (Adj. Sess.). Deleted "income and" preceding "hours of employment" and added "or verification of employment hours" following "the food stamps recertification".

§ 1212. Transition to other programs.

If a family loses employment meeting or exceeding the work requirements for Reach Up for the family's size and composition and is financially eligible for Reach Up, the family shall be transferred to Reach First or Reach Up without an additional application process, unless the family chooses not to participate. Verification of income or other documentation may be required as provided for by rule.

Added 2007, No. 30 , § 18, eff. Oct. 1, 2008; amended 2009, No. 67 (Adj. Sess.), § 93, eff. Feb. 25, 2010.

History

Amendments--2009 (Adj. Sess.). Deleted "unsubsidized" preceding "employment".

§ 1213. Notice and appeal.

A participant may appeal decisions in accordance with 3 V.S.A. § 3091 . The Commissioner shall provide notice to each participant of the standards and procedures applicable to such appeals. All federal and Agency of Human Services rules regarding conciliation, notice, hearing, and appeal shall be followed in connection with such appeals.

Added 2007, No. 30 , § 18, eff. Oct. 1, 2008.

CHAPTER 13. AID TO THE AGED, BLIND, AND DISABLED

Sec.

Cross References

Cross references. Pharmaceutical assistance to elderly and disabled Vermonters, see chapter 19, subchapter 8 of this title.

§ 1301. Eligibility requirements - general.

To be eligible for State aid to the aged, blind, or disabled, in addition to the requirements in sections 1301-1303 of this chapter governing eligibility for a specific program, an individual shall:

  1. Be a resident of this State when the person applies.
  2. Not have made a voluntary assignment or transfer of property or income for the purpose of qualifying, nor shall the individual's spouse have made a voluntary assignment or transfer of property or income for the purpose of qualifying the individual.
  3. Be a recipient of federal Supplemental Security Income, if eligible.
  4. Not have sufficient income or other resources to provide a reasonable subsistence compatible with decency and health, and not be receiving or able to secure support from persons legally responsible for the individual's support. In determining whether the income of an applicant for or a recipient of aid is sufficient, the Department for Children and Families may disregard, within the limits of available funds, income used to further the purposes of rehabilitation and self-support.

    Added 1967, No. 147 , § 3; amended 1969, No. 256 (Adj. Sess.), § 4, eff. April 6, 1970; 1973, No. 75 , § 1, eff. January 1, 1974; 1973, No. 152 (Adj. Sess.), § 16, eff. April 14, 1974; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 85; 2021, No. 20 , § 288.

History

Reference in text. The Supplemental Security Income program, referred to in subdiv. (3), is codified as 42 U.S.C. § 1381 et seq.

Amendments--2021 Section amended generally.

Amendments--2005 (Adj. Sess.). Subdiv. (4): Inserted "or her" following "his" and substituted "for children and families" for "of prevention, assistance, transition, and health access".

Amendments--1999 (Adj. Sess.). Subdiv. (4): Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare".

Amendments--1973 (Adj. Sess.). Subdiv. (4): In second sentence substituted "department of social welfare" for "department".

Amendments--1973. New subdiv. (3) added, former subdiv. (3) designated as subdiv. (4) and amended generally.

Amendments--1969 (Adj. Sess). Subdiv. (3): Added the second sentence.

Prior law. 33 V.S.A. § 2651.

ANNOTATIONS

Cited. Vigario v. Department of Social Welfare, 140 Vt. 100, 436 A.2d 768 (1981).

§ 1302. State aid to the aged.

State aid to the aged shall be granted to an individual who meets the eligibility requirements of section 1301 of this title and who in addition:

  1. has attained 65 years of age; and
  2. is not a patient in a public institution, except a public medical institution.

    Added 1967, No. 147 , § 3; amended 1969, No. 256 (Adj. Sess.), § 7(b), eff. April 6, 1970; 1973, No. 75 , § 2, eff. January 1, 1974; 2021, No. 20 , § 289.

History

Amendments--2021 Intro. para: Substituted "an individual" for "a person".

Subdiv. (1): Deleted "the age of" preceding "65 years" and inserted "of age" following "65 years".

Amendments--1973. Subsec. (a): Rephrased.

Amendments--1969 (Adj. Sess.). Subsec. (b): Repealed.

Prior law. 33 V.S.A. § 2651a.

§ 1303. State aid to the disabled.

  1. State aid to the disabled shall be granted to an individual who meets the eligibility requirements of section 1301 of this title and who in addition:
    1. is permanently and totally disabled as defined in Title XVI of the Social Security Act, as amended; and
    2. is not, at the date of receiving aid, an inmate of any public institution.
  2. An individual is also considered disabled for purposes of this chapter if the individual was disabled as defined under this chapter and the rules in effect under this chapter on December 31, 1973 and received aid under this chapter for December 1973, provided the individual has been, since that time, continuously disabled.

    Added 1967, No. 147 , § 3; amended 1973, No. 75 , § 3, eff. January 1, 1974; 1973, No. 171 (Adj. Sess.), § 1; 2013, No. 131 (Adj. Sess.), § 35, eff. May 20, 2014; 2021, No. 20 , § 290.

History

Reference in text. Title XVI of the Social Security Act, referred to in subdiv. (a)(1), is codified as 42 U.S.C. § 1381 et seq.

Amendments--2021 Subsec. (a): Substituted "an individual" for "a person".

Subsec. (b): Substituted "the individual" for "he or she", "rules" for "regulations", and "provided the individual" for "so long as he or she".

Amendments--2013 (Adj. Sess.). Subdiv. (a)(1): Deleted ", effective January 1, 1974" following "as amended".

Subsec. (b): Inserted "or she" twice.

Amendments--1973 (Adj. Sess.). Subsec. (a): Deleted subdiv. (1) and redesignated former subdivs. (2) and (3) as subdivs. (1) and (2).

Amendments--1973. Section amended generally.

Prior law. 33 V.S.A. § 2651b.

§ 1304. State aid to the blind.

  1. State aid to the blind shall be granted to an individual who meets the eligibility requirements of section 1301 of this title and in addition:
    1. is blind as defined in Title XVI of the Social Security Act, as amended; and
    2. is not, at the date of receiving aid, an inmate of any public institution.
  2. An individual is also considered blind for purposes of this chapter if the individual was blind as defined under this chapter and the rules in effect under this chapter on December 31, 1973 and received aid under this chapter for December 1973, provided the individual has been, since that time, continuously blind.

    Added 1967, No. 147 , § 3; amended 1969, No. 256 (Adj. Sess.), § 7(b), eff. April 16, 1970; 1973, No. 75 , § 4, eff. January 1, 1974; 2013, No. 131 (Adj. Sess.), § 36, eff. May 20, 2014; 2021, No. 20 , § 291.

History

Reference in text. Title XVI of the Social Security Act, referred to in subdiv. (a)(1), is codified as 42 U.S.C. § 1381 et seq.

Amendments--2021 Subsec. (a): Substituted "an individual" for "a person".

Subsec. (b): Substituted "the individual" for "he or she", "rules" for "regulations", and "provided the individual" for "so long as he or she".

Amendments--2013 (Adj. Sess.). Subdiv. (a)(1): Deleted ", effective January 1, 1974" following "as amended".

Subsec. (b): Inserted "or she" twice.

Amendments--1973. Subsec. (a): Amended generally.

Subsec. (b): Added.

Amendments--1969 (Adj. Sess.). Subsec. (b): Repealed.

Prior law. 33 V.S.A. § 2651c.

§ 1305. Disqualifications.

State aid to the aged, blind, and disabled shall not be granted to any individual who has real or personal property in excess of that permitted for eligibility for Supplemental Security Income under the Social Security Act as amended.

Added 1967, No. 147 , § 3; amended 1973, No. 171 (Adj. Sess.), § 2; 2021, No. 20 , § 292.

History

Reference in text. The Social Security Act, referred to in this section, is codified as 42 U.S.C. § 301 et seq.

Amendments--2021 Substituted "individual" for "person" preceding "who has real".

Amendments--1973 (Adj. Sess.). Section amended generally.

Prior law. 33 V.S.A. § 2652.

§ 1306. Application and investigation.

Applications for State aid to the aged, blind, or disabled may be made at any office of the Department for Children and Families. Upon receipt of an application, the Commissioner for Children and Families shall investigate and prescribe the amount of the grant to be given, if any. No individual shall receive more than one type of grant or aid under this chapter.

Added 1967, No. 147 , § 3; amended 1973, No. 75 , § 5, eff. January 1, 1974; 1973, No. 152 (Adj. Sess.), § 17, eff. April 14, 1974; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 86; 2021, No. 20 , § 293.

History

Amendments--2021 Substituted "individual shall" for "person may" in the last sentence.

Amendments--2005 (Adj. Sess.). Substituted "for children and families" for "of prevention, assistance, transition, and health access" in two places.

Amendments--1999 (Adj. Sess.). Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare" and "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare".

Amendments--1973 (Adj. Sess.). Substituted "department of social welfare" for "department" and "commissioner of social welfare" for "commissioner".

1973. Substituted "state aid" for "aid".

Prior law. 33 V.S.A. § 2653.

§ 1307. Amount of State aid.

The amount of State aid to which an eligible individual is entitled shall be determined with due regard to the income, resources, and maintenance available to the individual and, when an eligible individual lives with the individual's ineligible spouse or a needy essential person, or both, as defined by the Commissioner, with due regard to the needs of the ineligible spouse and with due regard to the needs, income, and resources of the needy essential person. To the extent funds are available, aid shall provide a reasonable subsistence compatible with decency and health. The Commissioner for Children and Families may by rule fix maximum amounts of aid and take measures to ensure that the expenditures for the programs shall not exceed the funds provided for them.

Added 1967, No. 147 , § 3; amended 1973, No. 75 , § 6, eff. January 1, 1974; 1973, No. 152 (Adj. Sess.), § 18, eff. April 14, 1974; 1977, No. 186 (Adj. Sess.); 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 87; 2021, No. 20 , § 294.

History

Amendments--2021 Section amended generally.

Amendments--2005 (Adj. Sess.). Inserted "or her" following "his" in two places; substituted "the" for "his" and "for children and families" for "of prevention, assistance, transition, and health access".

Amendments--1999 (Adj. Sess.). Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare".

Amendments--1977 (Adj. Sess.). Section amended generally.

Amendments--1973 (Adj. Sess.). Substituted "commissioner of social welfare" for "commissioner".

Amendments--1973. Substituted "state aid" for "aid".

Prior law. 33 V.S.A. § 2654.

§ 1308. Rules.

In fixing standards and adopting rules under this chapter, the Commissioner for Children and Families shall be guided by the statutory standards set forth in this chapter, which standards shall not be deemed necessarily to incorporate by reference decisional or statutory law applicable to the aid to the aged, blind, and disabled program in effect prior to January 1, 1974.

Added 1973, No. 75 , § 7, eff. January 1, 1974; amended 1973, No. 152 (Adj. Sess.), § 19, eff. April 14, 1974; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 88; 2021, No. 20 , § 295.

History

Amendments--2021 Substituted "Rules" for "Regulations" in the section heading and "adopting rules" for "issuing regulations" in the text of the section.

Amendments--2005 (Adj. Sess.). Substituted "for children and families" for "of prevention, assistance, transition, and health access" following "commissioner".

Amendments--1999 (Adj. Sess.). Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare".

Amendments--1973 (Adj. Sess.). Substituted "commissioner of social welfare" for "commissioner".

Prior law. 33 V.S.A. § 2660.

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. chapter 25.

§ 1309. Agreements.

  1. The Secretary of Human Services may enter into agreements by which an agency of the federal government or other public or private entity administers any or all parts of the State aid to the aged, blind, and disabled program.
  2. In cases in which the Secretary enters into such agreements with an agency of the federal government, any requirement set forth in this chapter that is inconsistent with the statutes and regulations of the federal government regarding federal administration of State supplementation of benefits under Title XVI of the Social Security Act shall be waived.
  3. The Secretary shall monitor the performance of the agency of the federal government or other public or private entity administering any or all parts of the State aid to the aged, blind, and disabled program. In the event the Secretary determines, in the Secretary's best judgment, that administration by an agency of the federal government or other public or private entity is not in the best interests of the citizens of Vermont, the Secretary is hereby authorized to terminate such agreements.
  4. The Department shall, upon request of any individual, provide information or assist that individual in transactions with the federal agency or other public or private entity administering any or all parts of the State aid to the aged, blind, and disabled program.

    Added 1973, No. 171 (Adj. Sess.), § 3; amended 1995, No. 178 (Adj. Sess.), § 305; 2021, No. 20 , § 296.

History

Reference in text. Title XVI of the Social Security Act, referred to in subdiv. (b)(1), is codified as 42 U.S.C. § 1381 et seq.

Amendments--2021 Subsec. (b): Substituted "in which" for "where", "that" for "which", and "Title XVI" for Title 16".

Subsec. (c): In the last sentence, substituted "the Secretary's" for "his or her", "interests" for "interest", and "the Secretary" for "he or she".

Amendments--1995 (Adj. Sess.) Section amended generally.

Prior law. 33 V.S.A. § 2661.

CHAPTER 15. SPECIAL SERVICES FOR PERSONS WHO ARE BLIND

Sec.

History

Amendments--2013 (Adj. Sess.). Chapter heading: Act No. 96, § 202, substituted "Persons who are" for "the" preceding "Blind”.

§ 1501. Register.

The Department of Disabilities, Aging, and Independent Living may prepare and maintain a register of persons who are blind in the State. It shall describe their condition, cause of blindness, capacity for education and vocational training, and other pertinent data.

Added 1967, No. 147 , § 2; amended 1973, No. 152 (Adj. Sess.), § 14, eff. April 14, 1974; 1981, No. 69 ; 2005, No. 174 (Adj. Sess.), § 89; 2013, No. 96 (Adj. Sess.), § 202.

History

Amendments--2013 (Adj. Sess.). Substituted "persons who are blind" for "blind persons" following "register of".

Amendments--2005 (Adj. Sess.). Substituted "disabilities, aging, and independent living" for "social and rehabilitation services" following "department of".

Amendments--1981. Deleted the subsection designation (a) from the text of the section and deleted subsec. (b).

Amendments--1973 (Adj. Sess.). Designated the existing provisions of the Section as subsec. (a), substituted "department of social and rehabilitation services" for "department" in that subsection and added subsec. (b).

Prior law. 33 V.S.A. § 2611.

§ 1502. Services for persons who are blind.

For the rehabilitation or amelioration of the condition of persons who are blind, the Department of Disabilities, Aging, and Independent Living may:

  1. Ameliorate the condition of persons who are blind by devising means for their adjustment, care, instruction, and well-being, including the distribution of books, promotion of visits to elders who are blind, and by other expedient and proper means and methods.
  2. Furnish medical examinations, physical restoration, guidance and counseling, vocational training, maintenance and transportation, occupational materials, tools, equipment, and licenses.
  3. Assist persons who are blind in developing home industries and small business enterprises and marketing their products.
  4. Act as an intermediary between persons who are blind and otherwise have a disability and industry for the purpose of arranging industrial homework of a subcontract nature, and pay inherent costs such as workers' compensation insurance and Social Security taxes.
  5. Contribute to the support of persons who are blind from this State who are receiving instruction or training in schools or institutions outside the State.
  6. [Repealed.]

    Added 1967, No. 147 , § 2; amended 1973, No. 152 (Adj. Sess.), § 15, eff. April 14, 1974; 1981, No. 165 (Adj. Sess.), § 1; 2005, No. 174 (Adj. Sess.), § 90; 2013, No. 96 (Adj. Sess.), § 202; 2017, No. 3 , § 66, eff. March 2, 2017.

History

Amendments--2017. Subdiv. (6): Repealed.

Amendments--2013 (Adj. Sess.). Substituted "persons who are blind" for "the blind" throughout the section, "elders who are" for "the aged and helpless" following "visits to" in subdiv. (1), "persons who are blind" for "blind persons" in subdivs. (3), (5), and (6), "have a disability" for "handicapped persons" following "otherwise" in subdiv. (4), and "monies" for "moneys" following "out of" in subdiv. (6).

Amendments--2005 (Adj. Sess.). Substituted "disabilities, aging, and independent living" for "social and rehabilitation services" in the introductory paragraph.

Amendments--1981 (Adj. Sess.). Subdiv. (4): Substituted "workers' compensation" for "workmen's compensation".

Amendments--1973 (Adj. Sess.). In the opening paragraph substituted "department of and rehabilitation services" for "department".

Prior law. 33 V.S.A. § 2612.

CHAPTER 16. VERMONT DEAF, HARD OF HEARING, AND DEAFBLIND ADVISORY COUNCIL

Sec.

§ 1601. Definitions.

As used in this chapter:

  1. "Communication or language mode" means verbal or nonverbal communication that includes listening, speaking, American Sign Language (ASL), Signed English, Signed Support, reading, and writing in all domains of a language. Reference to the communication mode of individuals who are Deaf, Hard of Hearing, or DeafBlind distinguishes between modality and language. Systems that assist individuals using a particular modality or language include ASL, spoken English, Signed English, sign-supported speech, speech or lip reading, cued speech, and assistive technology.
  2. "Deaf" means having a severe or complete absence of auditory sensitivity that impairs processing of linguistic information through hearing, with or without amplification or cochlear implants. Participation in Deaf Community culture and use of ASL are characteristic of persons who identify as Deaf.
  3. "DeafBlind" means having concomitant hearing and visual impairments.
  4. "Department" means the Department of Disabilities, Aging, and Independent Living.
  5. "Hard of Hearing" means a reduced level of functional hearing and reliance on residual hearing and technology, including hearing aids, cochlear implants, FM listening systems, and other types of assistive listening devices to communicate via verbal language, with or without use of ASL.

    Added 2015, No. 107 (Adj. Sess.), § 1, eff. May 12, 2016.

§ 1602. Vermont Deaf, Hard of Hearing, and Deafblind Advisory Council.

  1. Creation; purpose.  There is created a Vermont Deaf, Hard of Hearing, and DeafBlind Advisory Council to promote diversity, equality, awareness, and access among individuals who are Deaf, Hard of Hearing, or DeafBlind.
  2. Membership.  The Advisory Council shall consist of the following members:
    1. 16 members of the public, appointed by the Governor in a manner that ensures geographically diverse membership, including:
      1. nine or fewer members who are Deaf, Hard of Hearing, or DeafBlind, provided each population is represented and that if a member represents an organization for persons who are Deaf, Hard of Hearing, or DeafBlind, no other member on the Advisory Council shall also represent that organization;
      2. two members who are each a parent or guardian of a child who is Deaf, Hard of Hearing, or DeafBlind;
      3. two members who serve persons who are Deaf, Hard of Hearing, or DeafBlind in a professional capacity, provided that these members do not represent the same organization;
      4. a professional deaf-education specialist who understands all communication and language modes;
      5. a professional interpreter; and
      6. an audiologist or hard-of-hearing education specialist;
    2. the Senior Counselor for the Deaf and Hard of Hearing in the Department's Division of Vocational Rehabilitation or designee;
    3. the Secretary of Education or designee;
    4. the Secretary of Human Services or designee;
    5. the director of the Department for Children and Families' Children's Integrated Services or designee;
    6. the director of the Vermont Early Detection and Intervention Project;
    7. a representative of the Vermont Association of the Deaf;
    8. a representative of the Vermont chapter of the Hearing Loss Association of America;

      a superintendent, selected by the Vermont Superintendents Association; and

      a special education administrator, selected by the Vermont Council of Special Education Administrators.

  3. Powers and duties.
    1. The Advisory Council shall assess the services, resources, and opportunities available to children in the State who are Deaf, Hard of Hearing, or DeafBlind. It may consider and make recommendations to the General Assembly and the Governor on the following:
      1. the educational rights of children who are Deaf, Hard of Hearing, or DeafBlind, including full communication and language access in all educational environments and accessibility of qualified teachers, interpreters, and paraprofessionals;
      2. appropriate and ongoing educational opportunities that recognize each child's unique learning needs, including access to a sufficient number of communication or language mode peers and exposure to adult role models who are Deaf, Hard of Hearing, or DeafBlind;
      3. adequate family supports that promote both early development of communication skills and informed participation by parents and guardians in the education of their children;
      4. identification of all losses of or reductions in services arising from the closures of the Austine School for the Deaf and the Vermont Center for the Deaf and Hard of Hearing and evaluation of the adequacy of existing services and resources, as well as identification of those resources not currently available, adequate, or accessible to children;
      5. opportunities to restore and expand educational opportunities to children in the State who are Deaf, Hard of Hearing, or DeafBlind and their families; and
      6. appropriate data collection and reporting requirements concerning students with disabilities.
    2. The Advisory Council shall assess the services, resources, and opportunities available to adults and elders in the State who are Deaf, Hard of Hearing, or DeafBlind. It may consider and make recommendations to the General Assembly and the Governor on the following:
      1. the needs of and opportunities for adults and elders within the State who are Deaf, Hard of Hearing, or DeafBlind and their families;
      2. the adequacy and systemic coordination of existing services and resources for adults and elders throughout the State who are Deaf, Hard of Hearing, or DeafBlind and their families;
      3. proposed legislation and administrative rules pertaining to adults and elders who are Deaf, Hard of Hearing, or DeafBlind; and
      4. delivery models in other states as a point of comparison for the adequacy and systemic coordination of Vermont's existing services and resources for adults and elders who are Deaf, Hard of Hearing, or DeafBlind.
  4. Assistance.  The Advisory Council shall have the administrative, technical, and legal assistance of the Agencies of Education and of Human Services. The Advisory Council and Department may consult with national experts on education of persons who are Deaf, Hard of Hearing, or DeafBlind as necessary to fulfill their obligations under this section.
  5. Reports.  On or before January 15 of each year, notwithstanding 2 V.S.A. § 20(d) , the Advisory Council shall submit a written report to the Senate and House Committees on Education, the Senate Committee on Health and Welfare, the House Committee on Human Services, and the Governor with any findings and recommendations. A reading of each report shall be video recorded using ASL to ensure accessibility.
  6. Appointments; meetings.
    1. The Commissioner of Disabilities, Aging, and Independent Living shall convene the first meeting of the Advisory Council on or before July 1, 2016 and shall select interpreting services, computer assisted captioning in real time (CART), or FM listening systems for the meeting if a member so requests.
    2. At its first meeting, the Advisory Council shall elect a chair and vice chair.
    3. The Chair shall select interpreting services, CART, or FM listening systems for any Advisory Council meeting if a member so requests.
    4. The Advisory Council may meet up to eight times each year to perform its functions under this section. The Secretaries of Education and of Human Services may jointly authorize additional meetings.
    5. The Advisory Council may organize its members into subcommittees to carry out the purposes of this section, including subcommittees designed to address specific age groups within the Deaf, Hard of Hearing, and DeafBlind population.
  7. Reimbursement.
    1. Members of the Advisory Council who are not State employees or otherwise compensated or reimbursed for their attendance shall be entitled to per diem compensation and reimbursement of expenses pursuant to 32 V.S.A. § 1010 , payable by the Department.
    2. The Agency of Human Services shall pay for interpreting services, CART, or FM listening systems necessary to conduct all Advisory Council meetings.
    3. The Agency of Education, Department of Health, and Department of Disabilities, Aging, and Independent Living shall share costs for interpreting services, CART, or FM listening systems necessary to conduct all Advisory Council subcommittee meetings.

      Added 2015, No. 107 (Adj. Sess.), § 1, eff. May 12, 2016; amended 2019, No. 128 (Adj. Sess.), § 20.

History

Amendments--2019 (Adj. Sess.). Subsec. (b): Added subdiv. (b)(8) and redesignated former subdivs. (b)(8) and (b)(9) as subdivs. (b)(9) and (b)(10).

CHAPTER 17. SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM

Sec.

History

Amendments--2017 (Adj. Sess.). 2017, No. 104 (Adj. Sess.), § 1, rewrote the chapter heading.

§ 1701. Supplemental Nutrition Assistance Program.

  1. The State of Vermont may participate in the federal Supplemental Nutrition Assistance Program (SNAP) pursuant to 7 U.S.C. chapter 51. The purpose of SNAP is to alleviate hunger and malnutrition among households with low income by increasing their food purchasing power and access to nutritious, safe food.
  2. An individual domiciled in Vermont shall be exempt from the disqualification provided for in 21 U.S.C. § 862a .
  3. The Commissioner may adopt, amend, or repeal rules governing the operation of the Program in the State pursuant to 3 V.S.A. chapter 25.
  4. As used in this chapter, "Commissioner" means the Commissioner for Children and Families and "Department" means the Department for Children and Families.

    Added 1967, No. 147 , § 2; amended 1969, No. 169 (Adj. Sess.), eff. Feb. 16, 1970; 1973, No. 152 (Adj. Sess.), § 29, eff. April 14, 1974; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), §§ 91, 140; 2009, No. 1 (Sp. Sess.), § E.322; 2013, No. 131 (Adj. Sess.), § 37, eff. May 20, 2014; 2017, No. 104 (Adj. Sess.), § 1.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "7 U.S.C. chapter 51" for "Public Law 88-525, also known as the Food Stamp and Nutrition Act of 1964, as amended" at the end of the first sentence, "rules" for ", regulations" following "or repeal", and deleted "and from time to time" following "may adopt,".

Amendments--2009 (Sp. Sess.). Section heading: Substituted "Supplemental nutrition assistance" for "Food stamp" preceding "program".

Subsec. (a): Substituted "supplemental nutrition assistance" for "food stamp" preceding "program" and inserted "as amended" following "Food Stamp Act of 1964".

Subsec. (b): Added.

Amendments--2005 (Adj. Sess.). Subsec. (b): Repealed.

Subsec. (c): Substituted "for children and families" for "of prevention, assistance, transition, and health access" in two places.

Amendments--1999 (Adj. Sess.). Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare" in subsecs. (b) and (c) and "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare" in subsec. (c).

Amendments--1973 (Adj. Sess.). Subsec. (c): Added.

Amendments--1969 (Adj. Sess.). Section amended generally.

Prior law. 33 V.S.A. § 2602.

ANNOTATIONS

Cited. St. Amour v. Department of Social Welfare, 158 Vt. 77, 605 A.2d 1340 (1992).

§ 1702. Payment error rate report.

On or before January 1 of the year following any federal fiscal year in which the State of Vermont receives a federal sanction for a payment error rate greater than the federal threshold in the Supplemental Nutrition Assistance Program (SNAP), the Department for Children and Families shall report to the Senate Committee on Appropriations regarding:

  1. the number of households that received SNAP benefits and were discovered to have an overpayment or underpayment in the sanction year due to agency error, including the average amount of the overpayments and underpayments and the total amount of each; and
  2. the Department's specific plans for sanction reinvestment to improve its error rate for the next federal fiscal year and prevent sanction in the future.

    Added 2013, No. 179 (Adj. Sess.), § E.316; amended 2017, No. 154 (Adj. Sess.), § 11, eff. May 21, 2018.

History

Amendments--2017 (Adj. Sess.). Substituted "Senate Committee on Appropriations regarding" for "House Committees on Appropriations and on Human Services and to the Senate Committees on Appropriations and on Health and Welfare regarding" in the introductory language.

§ 1703. Changes to program administration.

    1. The Department shall report to the Chairs of the House Committee on Human Services and the Senate Committee on Health and Welfare and any interested stakeholders within 30 days after any substantive change in the federal law governing SNAP that: (a) (1)  The Department shall report to the Chairs of the House Committee on Human Services and the Senate Committee on Health and Welfare and any interested stakeholders within 30 days after any substantive change in the federal law governing SNAP that:
      1. restricts or improves eligibility;
      2. increases or reduces barriers or creates or eliminates hardships to access; or
      3. inhibits or increases benefit usage.
    2. Within 90 days after a change described pursuant to subdivision (1) of this subsection, the Department shall provide an analysis to the Chairs of any anticipated administrative costs to the Department and any impacts on SNAP applicants and participants as a result of the change.
  1. The Commissioner may convene a meeting of interested stakeholders to discuss a change listed in subsection (a) of this section.

    Added 2017, No. 104 (Adj. Sess.), § 1.

CHAPTER 18. PUBLIC-PRIVATE UNIVERSAL HEALTH CARE SYSTEM

Subchapter 1. Vermont Health Benefit Exchange

History

Health benefit exchange options. 2011, No. 171 (Adj. Sess.), § 2c, as amended by 2013, No. 79 , § 48 provides: "In approving benefit packages for the Vermont health benefit exchange pursuant to 18 V.S.A. § 9375(b)(9), the Green Mountain Care Board shall approve a full range of cost-sharing structures for each level of actuarial value. To the extent permitted under federal law, the Board shall also allow health insurers to establish rewards, premium discounts, split benefit designs, rebates, or otherwise waive or modify applicable co-payments, deductibles, or other cost-sharing amounts in return for adherence by an insured to programs of health promotion and disease prevention pursuant to 33 V.S.A. § 1811(f)(2)(B)."

§ 1801. Purpose.

  1. It is the intent of the General Assembly to establish a Vermont Health Benefit Exchange which meets the policy established in 18 V.S.A. § 9401 and, to the extent allowable under federal law or a waiver of federal law, becomes the mechanism to create Green Mountain Care.
  2. The purpose of the Vermont Health Benefit Exchange is to facilitate the purchase of affordable, qualified health benefit plans in the individual and group markets in this State in order to reduce the number of uninsured and underinsured; to reduce disruption when individuals lose employer-based insurance; to reduce administrative costs in the insurance market; to contain costs; to promote health, prevention, and healthy lifestyles by individuals; and to improve quality of health care.
  3. Nothing in this chapter shall be construed to reduce, diminish, or otherwise infringe upon the benefits provided to eligible individuals under Medicare.

    Added 2011, No. 48 , § 4.

§ 1802. Definitions.

As used in this subchapter:

  1. "Affordable Care Act" means the federal Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended by the federal Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, and as further amended.
  2. "Commissioner" means the Commissioner of Vermont Health Access.
  3. "Health benefit plan" means a policy, contract, certificate, or agreement offered or issued by a health insurer to provide, deliver, arrange for, pay for, or reimburse any of the costs of health services. This term does not include coverage only for accident or disability income insurance, liability insurance, coverage issued as a supplement to liability insurance, workers' compensation or similar insurance, automobile medical payment insurance, credit-only insurance, coverage for on-site medical clinics, or other similar insurance coverage where benefits for health services are secondary or incidental to other insurance benefits as provided under the Affordable Care Act. The term also does not include stand-alone dental or vision benefits; long-term care insurance; short-term, limited-duration health insurance; specific disease or other limited benefit coverage, Medicare supplemental health benefits, Medicare Advantage plans, and other similar benefits excluded under the Affordable Care Act.
  4. "Health insurer" shall have the same meaning as in 18 V.S.A. § 9402 .
  5. "Qualified employer":
    1. means an entity that employed an average of not more than 50 employees on working days during the preceding calendar year and that:
      1. has its principal place of business in this State and elects to provide coverage for its eligible employees through the Vermont Health Benefit Exchange, regardless of where an employee resides; or
      2. elects to provide coverage through the Vermont Health Benefit Exchange for all of its eligible employees who are principally employed in this State;
    2. on and after January 1, 2016, shall include an entity that:
      1. employed an average of not more than 100 employees on working days during the preceding calendar year; and
      2. meets the requirements of subdivisions (A)(i) and (A)(ii) of this subdivision (5).
    3. [Repealed.]
  6. "Qualified entity" means an entity with experience in individual and group health insurance, benefit administration, or other experience relevant to health benefit program eligibility, enrollment, or support.
  7. "Qualified health benefit plan" means a health benefit plan that meets the requirements set forth in section 1806 of this title.
  8. "Qualified individual" means an individual, including a minor, who is a Vermont resident and, at the time of enrollment:
    1. is not incarcerated, or is only incarcerated awaiting disposition of charges; and
    2. is, or is reasonably expected to be during the time of enrollment, a citizen or national of the United States or an immigrant lawfully present in the United States as defined by federal law.
  9. "Modified adjusted gross income" shall have the same meaning as in 26 U.S.C. § 36B(d)(2)(B).
  10. "Reflective health benefit plan" means a health benefit plan that meets the requirements set forth in section 1813 of this title.

    Added 2011, No. 48 , § 4; amended 2011, No. 171 (Adj. Sess.), § 1; 2013, No. 50 , § E.307, eff. Oct. 1, 2013; 2015, No. 54 , § 13, eff. June 5, 2015; 2015, No. 151 (Adj. Sess.), § 1. 2018; 2017, No. 88 (Adj. Sess.), § 2, eff. Feb. 20, 2018; 2017, No. 131 (Adj. Sess.), § 5, eff. May 16, 2018; 2019, No. 19 , § 4, eff. Jan. 1, 2020.

History

2013. Substituted "As used in" for "For the purposes of" to conform with V.S.A. style.

Amendments--2019 Subdiv. (10): Substituted "health benefit" for "silver" following "Reflective".

Amendments--2017 (Adj. Sess.). Subdiv. (3): Act No. 131 inserted "short-term, limited-duration health insurance" following "long-term care insurance" in the third sentence.

Subdiv. (10): Added by Act No. 88.

Amendments--2015 (Adj. Sess.). Subdiv. (5)(C): Repealed.

Amendments--2015. Subdiv. (5)(C): Substituted "January 1, 2018" for "January 1, 2017".

Amendments--2013 Subdiv. (9): Added.

Amendments--2011 (Adj. Sess.). Subdiv. (5): Amended generally.

§ 1803. Vermont Health Benefit Exchange.

    1. The Department of Vermont Health Access shall establish the Vermont Health Benefit Exchange, which shall be administered by the Department in consultation with the Advisory Committee established in section 402 of this title. (a) (1)  The Department of Vermont Health Access shall establish the Vermont Health Benefit Exchange, which shall be administered by the Department in consultation with the Advisory Committee established in section 402 of this title.
    2. The Vermont Health Benefit Exchange shall be considered a division within the Department of Vermont Health Access and shall be headed by a Deputy Commissioner as provided in 3 V.S.A. chapter 53.
      1. The Vermont Health Benefit Exchange shall provide qualified individuals and qualified employers with qualified health benefit plans, including the multistate plans required by the Affordable Care Act, with effective dates beginning on or before January 1, 2014. The Vermont Health Benefit Exchange may contract with qualified entities or enter into intergovernmental agreements to facilitate the functions provided by the Vermont Health Benefit Exchange. (b) (1) (A)  The Vermont Health Benefit Exchange shall provide qualified individuals and qualified employers with qualified health benefit plans, including the multistate plans required by the Affordable Care Act, with effective dates beginning on or before January 1, 2014. The Vermont Health Benefit Exchange may contract with qualified entities or enter into intergovernmental agreements to facilitate the functions provided by the Vermont Health Benefit Exchange.
      2. Prior to contracting with any health insurer, the Vermont Health Benefit Exchange shall consider the insurer's historic rate increase information required under section 1806 of this title, along with the information and the recommendations provided to the Vermont Health Benefit Exchange by the Commissioner of Financial Regulation under Section 2794(b)(1)(B) of the federal Public Health Service Act.
    1. To the extent allowable under federal law, the Vermont Health Benefit Exchange may offer health benefits to populations in addition to those eligible under Subtitle D of Title I of the Affordable Care Act, including:
      1. to individuals and employers who are not qualified individuals or qualified employers as defined by this subchapter and by the Affordable Care Act;
      2. Medicaid benefits to individuals who are eligible, upon approval by the Centers for Medicare and Medicaid Services and provided that including these individuals in the Health Benefit Exchange would not reduce their Medicaid benefits;
      3. Medicare benefits to individuals who are eligible, upon approval by the Centers for Medicare and Medicaid Services and provided that including these individuals in the Health Benefit Exchange would not reduce their Medicare benefits; and
      4. State employees and municipal employees, including teachers.
    2. To the extent allowable under federal law, the Vermont Health Benefit Exchange may offer health benefits to employees for injuries arising out of or in the course of employment in lieu of medical benefits provided pursuant to 21 V.S.A. chapter 9 (workers' compensation).
    3. To the extent permitted by the U.S. Department of Health and Human Services, the Vermont Health Benefit Exchange shall permit qualified individuals and qualified employers to purchase qualified health benefit plans through the Exchange website, through navigators, by telephone, or directly from a health insurer under contract with the Vermont Health Benefit Exchange.
    1. The Vermont Health Benefit Exchange may determine an appropriate method to provide a unified, simplified administration system for health insurers offering qualified health benefit plans. The Exchange may include claims administration, benefit management, billing, or other components in the unified system and may achieve simplification by contracting with a single entity for administration and management of all qualified health benefit plans, by licensing or requiring the use of particular software, by requiring health insurers to conform to a standard set of systems and rules, or by another method determined by the Commissioner. (c) (1)  The Vermont Health Benefit Exchange may determine an appropriate method to provide a unified, simplified administration system for health insurers offering qualified health benefit plans. The Exchange may include claims administration, benefit management, billing, or other components in the unified system and may achieve simplification by contracting with a single entity for administration and management of all qualified health benefit plans, by licensing or requiring the use of particular software, by requiring health insurers to conform to a standard set of systems and rules, or by another method determined by the Commissioner.
    2. The Vermont Health Benefit Exchange may offer certain services, such as wellness programs and services designed to simplify administrative processes, to health insurers offering plans outside the Exchange, to workers' compensation insurers, to employers, and to other entities.
  1. The Vermont Health Benefit Exchange may enter into information-sharing agreements with federal and State agencies and other state exchanges to carry out its responsibilities under this subchapter, provided such agreements include adequate protections with respect to the confidentiality of the information to be shared and provided such agreements comply with all applicable State and federal laws and regulations.

    Added 2011, No. 48 , § 4; amended 2013, No. 144 (Adj. Sess.), § 2, eff. May 27, 2014; 2015, No. 54 , § 11, eff. June 5, 2015.

History

2012. In subdiv. (b)(1)(B), substituted "commissioner of financial regulation” for "commissioner of banking, insurance, securities, and health care administration” in accordance with 2011, No, 78 (Adj. Sess.), § 2.

Amendments--2015. Subdiv. (b)(4): Inserted "qualified individuals and" preceding "qualified employers".

Amendments--2013 (Adj. Sess.). Subdiv. (b)(4): Added.

§ 1804. Qualified employers.

    1. Until January 1, 2016, a qualified employer shall be an entity that employed an average of not more than 50 employees on working days during the preceding calendar year, and the term "qualified employer" includes self-employed persons to the extent permitted under the Affordable Care Act. Calculation of the number of employees of a qualified employer shall not include a part-time employee who works fewer than 30 hours per week or a seasonal worker as defined in 26 U.S.C. § 4980H(c)(2)(B). (a) (1)  Until January 1, 2016, a qualified employer shall be an entity that employed an average of not more than 50 employees on working days during the preceding calendar year, and the term "qualified employer" includes self-employed persons to the extent permitted under the Affordable Care Act. Calculation of the number of employees of a qualified employer shall not include a part-time employee who works fewer than 30 hours per week or a seasonal worker as defined in 26 U.S.C. § 4980H(c)(2)(B).
    2. An employer with 50 or fewer employees that offers a qualified health benefit plan to its employees through the Vermont Health Benefit Exchange may continue to participate in the Exchange even if the employer's size grows beyond 50 employees, as long as the employer continuously makes qualified health benefit plans in the Vermont Health Benefit Exchange available to its employees.
    1. On and after January 1, 2016, a qualified employer shall be an entity that employed an average of not more than 100 employees on working days during the preceding calendar year, and the term "qualified employer" includes self-employed persons to the extent permitted under the Affordable Care Act. The number of employees shall be calculated using the method set forth in 26 U.S.C. § 4980H(c)(2). (b) (1)  On and after January 1, 2016, a qualified employer shall be an entity that employed an average of not more than 100 employees on working days during the preceding calendar year, and the term "qualified employer" includes self-employed persons to the extent permitted under the Affordable Care Act. The number of employees shall be calculated using the method set forth in 26 U.S.C. § 4980H(c)(2).
    2. An employer with 100 or fewer employees that offers a qualified health benefit plan to its employees through the Vermont Health Benefit Exchange may continue to participate in the Exchange even if the employer's size grows beyond 100 employees, as long as the employer continuously makes qualified health benefit plans in the Vermont Health Benefit Exchange available to its employees.
  1. [Repealed.]

    Added 2011, No. 171 (Adj. Sess.), § 2; amended 2013, No. 79 , § 28, eff. Oct. 1, 2013; 2015, No. 54 , § 14, eff. June 5, 2015; 2015, No. 151 (Adj. Sess.), § 2.

History

Amendments--2015 (Adj. Sess.). Subdiv. (b)(1): Substituted "On and after" for "From" preceding "January 1, 2016" and deleted "until January 1, 2017" following "January 1, 2016".

Subsec. (c): Repealed.

Amendments--2015. Subsec. (c): Substituted "January 1, 2018" for "January 1, 2017" in the first sentence.

Amendments--2013. Section amended generally.

§ 1805. Duties and responsibilities.

The Vermont Health Benefit Exchange shall have the following duties and responsibilities consistent with the Affordable Care Act:

  1. offering coverage for health services through qualified health benefit plans, including by creating a process for:
    1. the certification, decertification, and recertification of qualified health benefit plans as described in section 1806 of this title;
    2. enrolling qualified individuals in qualified health benefit plans, including through open enrollment periods as provided in the Affordable Care Act, and ensuring that individuals may transfer coverage between qualified health benefit plans and other sources of coverage as seamlessly as possible; and
    3. creating a simplified and uniform system for the administration of health benefits;
  2. determining eligibility for and enrolling individuals in Medicaid, Dr. Dynasaur, and VPharm pursuant to chapter 19 of this title, as well as any other public health benefit program;
  3. creating and maintaining consumer assistance tools, including a website through which enrollees and prospective enrollees of qualified health benefit plans may obtain standardized comparative information on such plans, a toll-free telephone hotline to respond to requests for assistance, and interactive online communication tools, in a manner that complies with the Americans with Disabilities Act;
  4. creating standardized forms and formats for presenting health benefit options in the Vermont Health Benefit Exchange, including the use of the uniform outline of coverage established under Section 2715 of the federal Public Health Services Act;
  5. assigning a quality and wellness rating to each qualified health benefit plan offered through the Vermont Health Benefit Exchange and determining each qualified health benefit plan's level of coverage in accordance with regulations issued by the U.S. Department of Health and Human Services;
  6. determining enrollee subsidies as required by the Secretary of the U.S. Department of the Treasury or of the U.S. Department of Health and Human Services and informing consumers of eligibility for subsidies, including by providing an electronic calculator to determine the actual cost of coverage after application of any premium tax credit under Section 36B of the Internal Revenue Code of 1986 and any cost-sharing reduction under Section 1402 of the Affordable Care Act;
  7. transferring to the Secretary of the U.S. Department of the Treasury the name and taxpayer identification number of each individual who was an employee of an employer but who was determined to be eligible for the premium tax credit under Section 36B of the Internal Revenue Code of 1986 for the following reasons:
    1. the employer did not provide minimum essential coverage; or
    2. the employer provided the minimum essential coverage, but it was determined under Section 36B(c)(2)(C) of the Internal Revenue Code to be either unaffordable to the employee or not to provide the required minimum actuarial value;
  8. performing duties required by the Secretary of the U.S. Department of Health and Human Services or the Secretary of the U.S. Department of the Treasury related to determining eligibility for the individual responsibility requirement exemptions, including:
    1. granting a certification attesting that an individual is exempt from the individual responsibility requirement or from the penalty for violating that requirement, if there is no affordable qualified health benefit plan available through the Vermont Health Benefit Exchange or the individual's employer for that individual or if the individual meets the requirements for any exemption from the individual responsibility requirement or from the penalty pursuant to Section 5000A of the Internal Revenue Code of 1986; and
    2. transferring to the Secretary of the U.S. Department of the Treasury a list of the individuals who are issued a certification under subdivision (8)(A) of this section, including the name and taxpayer identification number of each individual;
    1. transferring to the Secretary of the U.S. Department of the Treasury the name and taxpayer identification number of each individual who notifies the Vermont Health Benefit Exchange that he or she has changed employers and of each individual who ceases coverage under a qualified health benefit plan during a plan year and the effective date of that cessation; and (9) (A) transferring to the Secretary of the U.S. Department of the Treasury the name and taxpayer identification number of each individual who notifies the Vermont Health Benefit Exchange that he or she has changed employers and of each individual who ceases coverage under a qualified health benefit plan during a plan year and the effective date of that cessation; and
    2. communicating to each employer the name of each of its employees and the effective date of the cessation reported to the U.S. Department of the Treasury under this subdivision;
  9. establishing a navigator program as described in section 1807 of this title;
  10. reviewing the rate of premium growth within and outside the Vermont Health Benefit Exchange;
  11. [Repealed.]
  12. providing consumers and health care professionals with satisfaction surveys and other mechanisms for evaluating the performance of qualified health benefit plans and informing the Commissioner of Vermont Health Access and the Commissioner of Financial Regulation of such performance;
  13. ensuring consumers have easy and simple access to the relevant grievance and appeals processes pursuant to 8 V.S.A. chapter 107 and 3 V.S.A. § 3090 (Human Services Board);
  14. consulting with the Advisory Committee established in section 402 of this title to obtain information and advice as necessary to fulfill the duties outlined in this subchapter;
  15. referring consumers to the Office of the Health Care Advocate for assistance with grievances, appeals, and other issues involving the Vermont Health Benefit Exchange; and
  16. establishing procedures, including payment mechanisms and standard fee or compensation schedules, that allow licensed insurance agents and brokers to be appropriately compensated outside the navigator program established in section 1807 of this title for:
    1. assisting with the enrollment of qualified individuals and qualified employers in any qualified health plan offered through the Exchange for which the individual or employer is eligible; and
    2. assisting qualified individuals in applying for premium tax credits and cost-sharing reductions for qualified health benefit plans purchased through the Exchange.

      Added 2011, No. 48 , § 4; amended 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2011, No. 171 (Adj. Sess.), § 2d; 2013, No. 79 , § 29, eff. Oct. 1, 2013; 2013, No. 79 , § 35g, eff. January 1, 2014; 2021, No. 74 , § E.306.1, eff. Oct. 1, 2021.

History

Reference in text. Section 2715 of the Public Health Services Act, referred to in subdiv. (4), is codified as 42 U.S.C. § 300gg.

Section 36B of the Internal Revenue Code of 1986, referred to in subdivs. (6) and (7), is codified as 26 U.S.C. § 36B.

Section 1402 of the Affordable Care Act, referred to in subdiv. (6), is codified as 42 U.S.C. § 18071.

Section 5000A of the Internal Revenue Code of 1986, referred to in subdiv. (8)(A), is codified as 26 U.S.C. § 5000A.

Amendments--2021. Deleted subdiv. (1)(C) and redesignated former subdiv. (1)(D) as (1)(C); and deleted "premiums and" preceding "subsidies" twice in subdiv. (6).

Amendments--2013. Subdiv. (2): Inserted "and" preceding "VPharm" and deleted ", and VermontRx" following "VPharm".

Subdiv. (12): Deleted.

Subdiv. (16): Substituted "Office of the Health Care Advocate" for "office of health care ombudsman" following "the".

Amendments--2011 (Adj. Sess.). Subdiv. (13): Act No. 78 substituted "commissioner of financial regulation" for "commissioner of banking, insurance, securities, and health care administration".

Subdiv. (17): Added by Act No. 171.

§ 1806. Qualified health benefit plans.

  1. Prior to contracting with a health insurer to offer a qualified health benefit plan, the Commissioner shall determine that making the plan available through the Vermont Health Benefit Exchange is in the best interests of individuals and qualified employers in this State. In determining the best interests, the Commissioner shall consider affordability; promotion of high-quality care, prevention, and wellness; promotion of access to health care; participation in the State's health care reform efforts; and such other criteria as the Commissioner, in the Commissioner's discretion, deems appropriate.
    1. A qualified health benefit plan shall provide the following benefits: (b) (1)  A qualified health benefit plan shall provide the following benefits:
      1. The essential benefits package required by Section 1302(a) of the Affordable Care Act and any additional benefits required by the Secretary of Human Services by rule after consultation with the Advisory Committee established in section 402 of this title and after approval from the Green Mountain Care Board established in 18 V.S.A. chapter 220.
      2. Notwithstanding subdivision (1)(A) of this subsection (b), a health insurer or a stand-alone dental insurer, including a nonprofit dental service corporation, may offer a plan that provides only limited dental benefits, either separately or in conjunction with a qualified health benefit plan, if it meets the requirements of Section 9832(c)(2)(A) of the Internal Revenue Code and provides pediatric dental benefits meeting the requirements of Section 1302(b)(1)(J) of the Affordable Care Act. Said plans may include child-only policies or family policies. If permitted under federal law, a qualified health benefit plan offered in conjunction with a stand-alone dental plan providing pediatric dental benefits meeting the requirements of Section 1302(b)(1)(J) of the Affordable Care Act shall be deemed to meet the requirements of this subsection.
    2. At least the bronze level of coverage as defined by Section 1302 of the Affordable Care Act and the cost-sharing limitations for individuals provided in Section 1302 of the Affordable Care Act, as well as any more restrictive cost-sharing requirements specified by the Secretary of Human Services by rule after consultation with the Advisory Committee established in section 402 of this title and after approval from the Green Mountain Care Board established in 18 V.S.A. chapter 220.
    3. For qualified health benefit plans offered to employers, a deductible that meets the limitations provided in Section 1302 of the Affordable Care Act and any more restrictive deductible requirements specified by the Secretary of Human Services by rule after consultation with the Advisory Committee established in section 402 of this title and after approval from the Green Mountain Care Board established in 18 V.S.A. chapter 220.
  2. A qualified health benefit plan shall meet the following minimum prevention, quality, and wellness requirements:
    1. standards for marketing practices, network adequacy, essential community providers in underserved areas, appropriate services to enable access for underserved individuals or populations, accreditation, quality improvement, and information on quality measures for health benefit plan performance, as provided in Section 1311 of the Affordable Care Act and any more restrictive requirements provided by 8 V.S.A. chapter 107;
    2. quality and wellness standards, including a requirement for joint quality improvement activities with other plans, as specified in rule by the Secretary of Human Services, after consultation with the Commissioners of Health and of Financial Regulation and with the Advisory Committee established in section 402 of this title; and
    3. standards for participation in the Blueprint for Health as provided in 18 V.S.A. chapter 13.
  3. A health insurer offering a qualified health benefit plan shall use the uniform enrollment forms and descriptions of coverage provided by the Commissioners of Vermont Health Access and of Financial Regulation.
    1. A health insurer offering a qualified health benefit plan shall comply with the following insurance and consumer information requirements: (e) (1)  A health insurer offering a qualified health benefit plan shall comply with the following insurance and consumer information requirements:
        1. obtain premium approval through the rate review process provided in 8 V.S.A. chapter 107; and (A) (i) obtain premium approval through the rate review process provided in 8 V.S.A. chapter 107; and
        2. submit to the Commissioner of Financial Regulation a justification for any premium increase before implementation of that increase and prominently post this information on the health insurer's website.
      1. Offer at least one qualified health benefit plan at the silver level and at least one qualified health benefit plan at the gold level that meet the requirements of Section 1302 of the Affordable Care Act and any additional requirements specified by the Secretary of Human Services by rule.  In addition, a health insurer may choose to offer one or more qualified health benefit plans at the platinum level that meet the requirements of Section 1302 of the Affordable Care Act and any additional requirements specified by the Secretary of Human Services by rule.
      2. Charge the same premium rate for a health benefit plan without regard to whether the plan is offered through the Vermont Health Benefit Exchange and without regard to whether the plan is offered directly from the carrier or through an insurance agent.
      3. Provide accurate and timely disclosure of information to the public and to the Vermont Health Benefit Exchange relating to claims denials, enrollment data, rating practices, out-of-network coverage, enrollee and participant rights provided by Title I of the Affordable Care Act, and other information as required by the Commissioner of Vermont Health Access or by the Commissioner of Financial Regulation.  The Commissioner of Financial Regulation shall define, by rule, the acceptable time frame for provision of information in accordance with this subdivision.
      4. Provide information in a timely manner to an individual, upon request, regarding the cost-sharing amounts for that individual's health benefit plan.
    2. A health insurer offering a qualified health benefit plan shall comply with all other insurance requirements for health insurers as provided in 8 V.S.A. chapter 107 and as specified by rule by the Commissioner of Financial Regulation.
  4. Consistent with Section 1311(e)(1)(B) of the Affordable Care Act, the Vermont Health Benefit Exchange shall not exclude a health benefit plan:
    1. on the basis that the plan is a fee-for-service plan;
    2. through the imposition of premium price controls by the Vermont Health Benefit Exchange; or
    3. on the basis that the health benefit plan provides for treatments necessary to prevent patients' deaths in circumstances the Vermont Health Benefit Exchange determines are inappropriate or too costly.
  5. The Vermont Health Benefit Exchange shall clearly indicate to any prospective purchaser of a bronze-level plan, and of other plans as appropriate, the potential for significant out-of-pocket costs, in addition to the premium, associated with the plan.

    Added 2011, No. 48 , § 4; amended 2011, No. 171 (Adj. Sess.), §§ 2a, 2h; 2021, No. 20 , § 297.

History

Reference in text. Section 1302 of the Affordable Care Act, referred to in subdivs. (b)(1)-(3) and (e)(1)(B), is codified as 42 U.S.C. § 18022.

Section 9832 of the Internal Revenue Code of 1986, referred to in subdiv. (b)(1)(B), is codified as 26 U.S.C. § 9832.

Section 1311 of the Affordable Care Act, referred to in subdiv. (c)(1) and subsec. (f), is codified as 42 U.S.C. § 18031.

2012. Substituted "commissioner of financial regulation” for "commissioner of banking, insurance, securities, and health care administration” throughout the section in accordance with 2011, No, 78 (Adj. Sess.), § 2.

Amendments--2021 Subsec. (a): Substituted "interests" for "interest" twice and, in the second sentence, "the Commissioner's" for "his or her".

Amendments--2011 (Adj. Sess.). Added the second and third sentences in subdiv. (b)(1)(B), substituted "bronze" for "silver" preceding "level" in subdiv. (b)(2), and added subsec. (g).

§ 1807. Navigators.

    1. The Vermont Health Benefit Exchange shall establish a navigator program to assist individuals and employers in enrolling in a qualified health benefit plan offered under the Vermont Health Benefit Exchange. The Vermont Health Benefit Exchange shall select individuals and entities qualified to serve as navigators and shall award grants to navigators for the performance of their duties. (a) (1)  The Vermont Health Benefit Exchange shall establish a navigator program to assist individuals and employers in enrolling in a qualified health benefit plan offered under the Vermont Health Benefit Exchange. The Vermont Health Benefit Exchange shall select individuals and entities qualified to serve as navigators and shall award grants to navigators for the performance of their duties.
    2. The Vermont Health Benefit Exchange shall ensure that navigators are available to provide assistance in person or through interactive technology to individuals in all regions of the State in a manner that complies with the Americans with Disabilities Act.
    3. Consistent with Section 1311(i)(4) of the Affordable Care Act, health insurers shall not serve as navigators, and no navigator shall receive any compensation from a health insurer in connection with enrolling individuals or employees in qualified health benefit plans.
  1. Navigators shall have the following duties:
    1. conduct public education activities to raise awareness of the availability of qualified health benefit plans;
    2. distribute fair and impartial information concerning enrollment in qualified health benefit plans and concerning the availability of premium tax credits and cost-sharing reductions;
    3. facilitate enrollment in qualified health benefit plans, Medicaid, Dr. Dynasaur, VPharm, and other public health benefit programs;
    4. provide referrals to the Office of the Health Care Advocate and any other appropriate agency for any enrollee with a grievance, complaint, or question regarding his or her health benefit plan, coverage, or a determination under that plan or coverage;
    5. provide information in a manner that is culturally and linguistically appropriate to the needs of the population being served by the Vermont Health Benefit Exchange; and
    6. distribute information to health care professionals, community organizations, and others to facilitate the enrollment of individuals who are eligible for Medicaid, Dr. Dynasaur, VPharm, other public health benefit programs, or the Vermont Health Benefit Exchange in order to ensure that all eligible individuals are enrolled.
    7. [Repealed.]

      Added 2011, No. 48 , § 4; amended 2011, No. 171 (Adj. Sess.), § 2b; 2013, No. 79 , §§ 22, 35h, eff. Jan. 1, 2014; 2019, No. 15 , § 1, eff. May 6, 2019.

History

Reference in text. Section 1311 of the Affordable Care Act, referred to in subdiv. (a)(3), is codified as 42 U.S.C. § 18031.

Amendments--2019 Subdiv. (b)(5): Added "and" following "Benefit Exchange;".

Subdiv. (b)(6): Substituted a period for "; and" following "eligible individuals are enrolled".

Subdiv. (b)(7): Repealed.

Amendments--2013. Subdivs. (b)(3), (b)(6): Deleted "VermontRx," following "VPharm".

Subdiv. (b)(4): Substituted "Office of the Health Care Advocate" for "Office of Health Care Ombudsman" following "the".

Amendments--2011 (Adj. Sess.). Subdiv. (b)(7): Added.

§ 1808. Financial integrity.

  1. The Vermont Health Benefit Exchange shall:
    1. keep an accurate accounting of all activities, receipts, and expenditures and submit this information annually as required by federal law; and
    2. cooperate with the Secretary of the U.S. Department of Health and Human Services or the Inspector General of the U.S. Department of Health and Human Services in any investigation into the affairs of the Vermont Health Benefit Exchange, any examination of the properties and records of the Vermont Health Benefit Exchange, or any requirement for periodic reports in relation to the activities undertaken by the Vermont Health Benefit Exchange.
  2. In carrying out its activities under this subchapter, the Vermont Health Benefit Exchange shall not use any funds intended for the administrative and operational expenses of the Vermont Health Benefit Exchange for staff retreats, promotional giveaways, excessive executive compensation, or promotion of federal or State legislative or regulatory modifications.

    Added 2011, No. 48 , § 4.

§ 1809. Publication of costs and satisfaction surveys.

  1. The Vermont Health Benefit Exchange shall publish the average costs of licensing, regulatory fees, and any other payments required by the Exchange, as well as the administrative costs of the Exchange, on a website intended to educate consumers about such costs. This information shall include information on monies lost to waste, fraud, and abuse.
  2. The Vermont Health Benefit Exchange shall publish the deidentified results of the satisfaction surveys and other evaluation mechanisms required pursuant to subdivision 1805(13) of this title on a website intended to enable consumers to compare the qualified health benefit plans offered through the Exchange.

    Added 2011, No. 48 , § 4.

§ 1810. Rules.

The Secretary of Human Services may adopt rules pursuant to 3 V.S.A. chapter 25 as needed to carry out the duties and functions established in this subchapter.

Added 2011, No. 48 , § 4.

§ 1811. Health benefit plans for individuals and small employers.

  1. As used in this section:
    1. "Health benefit plan" means a health insurance policy, a nonprofit hospital or medical service corporation service contract, or a health maintenance organization health benefit plan offered through the Vermont Health Benefit Exchange or a reflective health benefit plan offered in accordance with section 1813 of this title that is issued to an individual or to an employee of a small employer. The term does not include coverage only for accident or disability income insurance, liability insurance, coverage issued as a supplement to liability insurance, workers' compensation or similar insurance, automobile medical payment insurance, credit-only insurance, coverage for on-site medical clinics, or other similar insurance coverage in which benefits for health services are secondary or incidental to other insurance benefits as provided under the Affordable Care Act. The term also does not include stand-alone dental or vision benefits; long-term care insurance; short-term, limited-duration health insurance; specific disease or other limited benefit coverage; Medicare supplemental health benefits; Medicare Advantage plans; and other similar benefits excluded under the Affordable Care Act.
    2. "Registered carrier" means any person, except an insurance agent, broker, appraiser, or adjuster, who issues a health benefit plan and who has a registration in effect with the Commissioner of Financial Regulation as required by this section.
      1. Until January 1, 2016, "small employer" means an entity that employed an average of not more than 50 employees on working days during the preceding calendar year. The term includes self-employed persons to the extent permitted under the Affordable Care Act. Calculation of the number of employees of a small employer shall not include a part-time employee who works fewer than 30 hours per week or a seasonal worker as defined in 26 U.S.C. § 4980H(c)(2)(B). An employer may continue to participate in the Exchange even if the employer's size grows beyond 50 employees, as long as the employer continuously makes qualified health benefit plans in the Vermont Health Benefit Exchange available to its employees. (3) (A) Until January 1, 2016, "small employer" means an entity that employed an average of not more than 50 employees on working days during the preceding calendar year. The term includes self-employed persons to the extent permitted under the Affordable Care Act. Calculation of the number of employees of a small employer shall not include a part-time employee who works fewer than 30 hours per week or a seasonal worker as defined in 26 U.S.C. § 4980H(c)(2)(B). An employer may continue to participate in the Exchange even if the employer's size grows beyond 50 employees, as long as the employer continuously makes qualified health benefit plans in the Vermont Health Benefit Exchange available to its employees.
      2. Beginning on January 1, 2016, "small employer" means an entity that employed an average of not more than 100 employees on working days during the preceding calendar year. The term includes self-employed persons to the extent permitted under the Affordable Care Act. The number of employees shall be calculated using the method set forth in 26 U.S.C. § 4980H(c)(2). An employer may continue to participate in the Exchange even if the employer's size grows beyond 100 employees, as long as the employer continuously makes qualified health benefit plans in the Vermont Health Benefit Exchange available to its employees.
    1. To the extent permitted by the U.S. Department of Health and Human Services, an individual may purchase a health benefit plan through the Exchange website, through navigators, by telephone, or directly from a registered carrier under contract with the Vermont Health Benefit Exchange, if the carrier elects to make direct enrollment available. A registered carrier enrolling individuals in health benefit plans directly shall comply with all open enrollment and special enrollment periods applicable to the Vermont Health Benefit Exchange. (b) (1)  To the extent permitted by the U.S. Department of Health and Human Services, an individual may purchase a health benefit plan through the Exchange website, through navigators, by telephone, or directly from a registered carrier under contract with the Vermont Health Benefit Exchange, if the carrier elects to make direct enrollment available. A registered carrier enrolling individuals in health benefit plans directly shall comply with all open enrollment and special enrollment periods applicable to the Vermont Health Benefit Exchange.
    2. To the extent permitted by the U.S. Department of Health and Human Services, a small employer or an employee of a small employer may purchase a health benefit plan through the Exchange website, through navigators, by telephone, or directly from a registered carrier under contract with the Vermont Health Benefit Exchange.
    3. No person may provide a health benefit plan to an individual or small employer unless the plan complies with the provisions of this subchapter.
  2. No person may provide a health benefit plan to an individual or small employer unless such person is a registered carrier. The Commissioner of Financial Regulation shall establish, by rule, the minimum financial, marketing, service, and other requirements for registration. Such registration shall be effective upon approval by the Commissioner of Financial Regulation and shall remain in effect until revoked or suspended by the Commissioner of Financial Regulation for cause or until withdrawn by the carrier. A carrier may withdraw its registration upon at least six months' prior written notice to the Commissioner of Financial Regulation. A registration filed with the Commissioner of Financial Regulation shall be deemed to be approved unless it is disapproved by the Commissioner of Financial Regulation within 30 days of filing.
    1. Guaranteed issue.  A registered carrier shall guarantee acceptance of all individuals, small employers, and employees of small employers, and each dependent of such individuals and employees, for any health benefit plan offered by the carrier, regardless of any outstanding premium amount a subscriber may owe to the carrier for coverage provided during the previous plan year. (d) (1)  Guaranteed issue.  A registered carrier shall guarantee acceptance of all individuals, small employers, and employees of small employers, and each dependent of such individuals and employees, for any health benefit plan offered by the carrier, regardless of any outstanding premium amount a subscriber may owe to the carrier for coverage provided during the previous plan year.
    2. Preexisting condition exclusions.  A registered carrier shall not exclude, restrict, or otherwise limit coverage under a health benefit plan for any preexisting health condition.
    3. Annual limitations on cost sharing.
        1. The annual limitation on cost sharing for self-only coverage for any year shall be the same as the dollar limit established by the federal government for self-only coverage for that year in accordance with 45 C.F.R. § 156.130. (A) (i) The annual limitation on cost sharing for self-only coverage for any year shall be the same as the dollar limit established by the federal government for self-only coverage for that year in accordance with 45 C.F.R. § 156.130.
        2. The annual limitation on cost sharing for other than self-only coverage for any year shall be twice the dollar limit for self-only coverage described in subdivision (i) of this subdivision (A).

          In the event that the federal government does not establish an annual limitation on cost sharing for any plan year, the annual limitation on cost sharing for self-only coverage for that year shall be the dollar limit for self-only coverage in the preceding calendar year, increased by any percentage by which the average per capita premium for health insurance coverage in Vermont for the preceding calendar year exceeds the average per capita premium for the year before that.

          (ii) The annual limitation on cost-sharing for other than self-only coverage for any year in which the federal government does not establish an annual limitation on cost sharing shall be twice the dollar limit for self-only coverage described in subdivision (i) of this subdivision (B).

        3. with respect to infants, children, and adolescents, evidence-informed preventive care and screenings as set forth in comprehensive guidelines supported by the federal Health Resources and Services Administration; and
        4. with respect to women, to the extent not included in subdivision (i) of this subdivision (5)(A), evidence-informed preventive care and screenings set forth in binding comprehensive health plan coverage guidelines supported by the federal Health Resources and Services Administration.
    4. Ban on annual and lifetime limits.  A health benefit plan shall not establish any annual or lifetime limit on the dollar amount of essential health benefits, as defined in Section 1302(b) of the Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, and applicable regulations and federal guidance, for any individual insured under the plan, regardless of whether the services are provided in-network or out-of-network.
      1. No cost sharing for preventive services.  A health benefit plan shall not impose any co-payment, coinsurance, or deductible requirements for: (5) (A) No cost sharing for preventive services.  A health benefit plan shall not impose any co-payment, coinsurance, or deductible requirements for:
      2. Subdivision (A) of this subdivision (5) shall apply to a high-deductible health plan only to the extent that it would not disqualify the plan from eligibility for a health savings account pursuant to 26 U.S.C. § 223.

      (i) preventive services that have an "A" or "B" rating in the current recommendations of the U.S. Preventive Services Task Force;

      (ii) immunizations for routine use in children, adolescents, and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved;

  3. A registered carrier shall offer a health benefit plan rate structure that at least differentiates between single person, two person, and family rates.
    1. A registered carrier shall use a community rating method acceptable to the Commissioner of Financial Regulation for determining premiums for health benefit plans. Except as provided in subdivision (2) of this subsection, the following risk classification factors are prohibited from use in rating individuals, small employers, or employees of small employers, or the dependents of such individuals or employees: (f) (1)  A registered carrier shall use a community rating method acceptable to the Commissioner of Financial Regulation for determining premiums for health benefit plans. Except as provided in subdivision (2) of this subsection, the following risk classification factors are prohibited from use in rating individuals, small employers, or employees of small employers, or the dependents of such individuals or employees:
      1. demographic rating, including age and gender rating;
      2. geographic area rating;
      3. industry rating;
      4. medical underwriting and screening;
      5. experience rating;
      6. tier rating; or
      7. durational rating.
      1. The Commissioner of Financial Regulation shall, by rule, adopt standards and a process for permitting registered carriers to use one or more risk classifications in their community rating method, provided that the premium charged shall not deviate above or below the community rate filed by the carrier by more than 20 percent and provided further that the Commissioner of Financial Regulation's rules may not permit any medical underwriting and screening and shall give due consideration to the need for affordability and accessibility of health insurance. (2) (A) The Commissioner of Financial Regulation shall, by rule, adopt standards and a process for permitting registered carriers to use one or more risk classifications in their community rating method, provided that the premium charged shall not deviate above or below the community rate filed by the carrier by more than 20 percent and provided further that the Commissioner of Financial Regulation's rules may not permit any medical underwriting and screening and shall give due consideration to the need for affordability and accessibility of health insurance.
      2. The Commissioner of Financial Regulation's rules shall permit a carrier, including a hospital or medical service corporation and a health maintenance organization, to establish rewards, premium discounts, split benefit designs, rebates, or otherwise waive or modify applicable co-payments, deductibles, or other cost-sharing amounts in return for adherence by a member or subscriber to programs of health promotion and disease prevention. The Commissioner of Financial Regulation shall consult with the Commissioner of Health, the Director of the Blueprint for Health, and the Commissioner of Vermont Health Access in the development of health promotion and disease prevention rules that are consistent with the Blueprint for Health. Such rules shall:
        1. limit any reward, discount, rebate, or waiver or modification of cost-sharing amounts to not more than a total of 15 percent of the cost of the premium for the applicable coverage tier, provided that the sum of any rate deviations under subdivision (A) of this subdivision (2) does not exceed 30 percent;
        2. be designed to promote good health or prevent disease for individuals in the program and not be used as a subterfuge for imposing higher costs on an individual based on a health factor;
        3. provide that the reward under the program is available to all similarly situated individuals and shall comply with the nondiscrimination provisions of the federal Health Insurance Portability and Accountability Act of 1996; and
        4. provide a reasonable alternative standard to obtain the reward to any individual for whom it is unreasonably difficult due to a medical condition or other reasonable mitigating circumstance to satisfy the otherwise applicable standard for the discount and disclose in all plan materials that describe the discount program the availability of a reasonable alternative standard.
      3. The Commissioner of Financial Regulation's rules shall include:
        1. standards and procedures for health promotion and disease prevention programs based on the best scientific, evidence-based medical practices as recommended by the Commissioner of Health;
        2. standards and procedures for evaluating an individual's adherence to programs of health promotion and disease prevention; and
        3. any other standards and procedures necessary or desirable to carry out the purposes of this subdivision (2).
      4. The Commissioner of Financial Regulation may require a registered carrier to identify that percentage of a requested premium increase that is attributed to the following categories: hospital inpatient costs, hospital outpatient costs, pharmacy costs, primary care, other medical costs, administrative costs, and projected reserves or profit. Reporting of this information shall occur at the time a rate increase is sought and shall be in the manner and form directed by the Commissioner of Financial Regulation. Such information shall be made available to the public in a manner that is easy to understand.
  4. A registered carrier shall file with the Commissioner of Financial Regulation an annual certification by a member of the American Academy of Actuaries of the carrier's compliance with this section. The requirements for certification shall be as the Commissioner of Financial Regulation prescribes by rule.
  5. A registered carrier shall provide, on forms prescribed by the Commissioner of Financial Regulation, full disclosure to a small employer of all premium rates and any risk classification formulas or factors prior to acceptance of a plan by the small employer.
  6. A registered carrier shall guarantee the rates on a health benefit plan for a minimum of 12 months.
  7. The Commissioner of Financial Regulation or the Green Mountain Care Board established in 18 V.S.A. chapter 220, as appropriate, shall disapprove any rates filed by any registered carrier, whether initial or revised, for insurance policies unless the anticipated medical loss ratios for the entire period for which rates are computed are at least 80 percent, as required by the Affordable Care Act.
  8. The guaranteed acceptance provision of subsection (d) of this section shall not be construed to limit an employer's discretion in contracting with his or her employees for insurance coverage.
  9. A registered carrier shall allow for the enrollment of a pregnant individual, and of any individual who is eligible for coverage under the terms of the health benefit plan because of a relationship to the pregnant individual, at any time after the commencement of the pregnancy. Coverage shall be effective as of the first of the month following the individual's selection of a health benefit plan.

    Added 2011, No. 171 (Adj. Sess.), § 3, eff. Jan. 1, 2013; amended 2013, No. 79 , § 5n, eff. Jan. 1, 2014; 2013, No. 79 , § 30, eff. Oct. 1, 2013; 2013, No. 144 (Adj. Sess.), § 3, eff. May 27, 2014; 2015, No. 54 , § 12, eff. June 5, 2015; 2015, No. 120 (Adj. Sess.), § 4; 2017, No. 85 , § E.306.3; 2017, No. 88 (Adj. Sess.), § 3, eff. Feb. 20, 2018; 2017, No. 131 (Adj. Sess.), § 6, eff. May 16, 2018; 2019, No. 19 , § 5, eff. Jan. 1, 2020; 2019, No. 63 , § 6, eff. Jan. 1, 2020.

History

Reference in text. Section 1302 of the Affordable Care Act, referred to in subdiv. (d)(4), is codified as 42 U.S.C. § 18022.

2014. Added "of Financial Regulation" following "Commissioner" throughout section for clarity.

Amendments--2019. Subdiv. (a)(1): Act No. 19 substituted "health benefit" for "silver" following "reflective" in the first sentence.

Subsec. (d): Act No. 63 added subdiv. (1) designation and heading and added subdivs. (2) through (5).

Amendments--2017 (Adj. Sess.). Subdiv. (a)(1): Act No. 88 deleted "and" following "Exchange" and inserted "or a reflective silver plan offered in accordance with section 1813 of this title that is" preceding "issued" in the first sentence.

Subdiv. (a)(1): Act No. 131 inserted "short-term, limited-duration health insurance" following "long-term care insurance" in the third sentence.

Amendments--2017. Subsec. (d): Added ", regardless of any outstanding premium amount a subscriber may owe to the carrier for coverage provided during the previous plan year" following "by the carrier".

Amendments--2015 (Adj. Sess.). Subsec. ( l ): Added.

Amendments--2015. Subdiv. (b)(1): Amended generally.

Subdiv. (b)(2): Substituted "registered carrier" for "health insurer" preceding "under contract".

Amendments--2013 (Adj. Sess.). Subdiv. (b)(1): Deleted "or small employer" following "to an individual" and "and complies with the provisions of this subchapter" at the end.

Subdivs. (b)(2) and (b)(3): Added.

Amendments--2013. Subdiv. (a)(3): Amended generally.

Subsec. (j): Substituted "Commissioner or the Green Mountain Care Board established in 18 V.S.A. chapter 220, as appropriate" for "Commissioner" preceding "shall" and deleted "Patient Protection and" preceding "Affordable" and "(Public Law 111-148)" following "Act".

Effective date and applicability of 2019 amendment. 2019, No. 63 , § 13, provides that the amendment to this section by section 6 of the act shall take effect on January 1, 2020 and shall apply to all individual and group insurance policies and health benefit plans issued on and after January 1, 2020 on such date as a health insurer offers, issues, or renews the policy or plan, but in no event later than January 1, 2021.

SHOP Waiver. 2015, No. 67 (Adj. Sess.), § 1 provides: "The Commissioner of Vermont Health Access, with assistance from the Director of Health Care Reform, shall seek a waiver under Section 1332 of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, for the purpose of waiving the federal requirement to establish an Internet-based Small Business Health Options Program (SHOP) and permitting qualified employers to purchase qualified health benefit plans offered by the Vermont Health Benefit Exchange directly from a registered carrier."

Separating the individual and small group health insurance markets for plan year 2022. 2021, No. 25 , § 34 provides: "(a) Purpose. The purpose of this section is to allow for separate individual and small group health insurance markets for plan year 2022 in light of the increased opportunities for federal premium assistance available through the American Rescue Plan Act of 2021, Pub. L. No. 117-2, to eligible households purchasing qualified health benefit plans in the individual market.

"(b) Definitions. As used in this section, 'health benefit plan,' 'registered carrier,' and 'small employer' have the same meanings as in 33 V.S.A. § 1811.

"(c) Separate plans and community rating. Notwithstanding any provision of 33 V.S.A. § 1811 to the contrary, for plan year 2022, a registered carrier shall:

"(1) offer separate health benefit plans to individuals and families in the individual market and to small employers in the small group market;

"(2) apply community rating in accordance with 33 V.S.A. § 1811(f) to determine the premiums for the carrier's plan year 2022 individual market plans separately from the premiums for its small group market plans; and

"(3) file premium rates with the Green Mountain Care Board pursuant to 8 V.S.A. § 4062 separately for the carrier's individual market and small group market plans."

§ 1812. Financial assistance to individuals.

    1. An individual or family eligible for federal premium tax credits under 26 U.S.C. § 36B with income less than or equal to 300 percent of federal poverty level shall be eligible for premium assistance from the State of Vermont. (a) (1)  An individual or family eligible for federal premium tax credits under 26 U.S.C. § 36B with income less than or equal to 300 percent of federal poverty level shall be eligible for premium assistance from the State of Vermont.
    2. The Department of Vermont Health Access shall establish a premium schedule on a sliding scale based on modified adjusted gross income for the individuals and families described in subdivision (1) of this subsection. The Department shall reduce the premium contribution for these individuals and families by 1.5 percent below the premium amount established in 26 U.S.C. § 36B.
    3. Premium assistance shall be available for the same qualified health benefit plans for which federal premium tax credits are available.
    1. An individual or family with income at or below 300 percent of the federal poverty level shall be eligible for cost-sharing assistance, including a reduction in the out-of-pocket maximums established under Section 1402 of the Affordable Care Act. (b) (1)  An individual or family with income at or below 300 percent of the federal poverty level shall be eligible for cost-sharing assistance, including a reduction in the out-of-pocket maximums established under Section 1402 of the Affordable Care Act.
    2. The Department of Vermont Health Access shall establish cost-sharing assistance on a sliding scale based on modified adjusted gross income for the individuals and families described in subdivision (1) of this subsection. Cost-sharing assistance shall be established as follows:
      1. for households with income at or below 150 percent of the federal poverty level (FPL): 94 percent actuarial value;
      2. for households with income above 150 percent FPL and at or below 200 percent FPL: 87 percent actuarial value;
      3. for households with income above 200 percent FPL and at or below 250 percent FPL: 77 percent actuarial value;
      4. for households with income above 250 percent FPL and at or below 300 percent FPL: 73 percent actuarial value.
    3. Cost-sharing assistance shall be available for silver-level qualified health benefit plans purchased through the Vermont Health Benefit Exchange and shall be administered using the same methods as set forth in Section 1402 of the Affordable Care Act to the extent practicable.
  1. To the extent feasible, the Department shall use the same mechanisms provided in the Affordable Care Act to establish financial assistance under this section in order to minimize confusion and complication for individuals, families, and health insurers.

    Added 2013, No. 50 , § E.307.1, eff. Oct. 1, 2013; amended 2015, No. 23 , § 54; 2017, No. 88 (Adj. Sess.), § 4, eff. Feb. 20, 2018.

History

Reference in text. Section 1402 of the Affordable Care Act, referred to in subdiv. (b)(1), is codified as 42 U.S.C. § 18071.

Amendments--2017 (Adj. Sess.). Subdiv. (b)(3): Amended generally.

Amendments--2015. Subdiv. (b)(1): Substituted "federal poverty level" for "federal poverty guideline" preceding "shall be eligible".

§ 1813. Reflective health benefit plans.

    1. In the event that federal cost-sharing reduction payments to insurers are suspended or discontinued, registered carriers may offer to individuals and employees of small employers nonqualified reflective health benefit plans that do not include funding to offset the loss of the federal cost-sharing reduction payments. These plans shall be similar to, but contain at least one variation from, qualified health benefit plans offered through the Vermont Health Benefit Exchange that include funding to offset the loss of the federal cost-sharing reduction payments. (a) (1)  In the event that federal cost-sharing reduction payments to insurers are suspended or discontinued, registered carriers may offer to individuals and employees of small employers nonqualified reflective health benefit plans that do not include funding to offset the loss of the federal cost-sharing reduction payments. These plans shall be similar to, but contain at least one variation from, qualified health benefit plans offered through the Vermont Health Benefit Exchange that include funding to offset the loss of the federal cost-sharing reduction payments.
    2. In its review and approval of premium rates pursuant to 8 V.S.A. § 4062 , the Green Mountain Care Board shall ensure that:
      1. the rates for some or all qualified health benefit plans offered through the Vermont Health Benefit Exchange include funding to offset the loss of the federal cost-sharing reduction payments; and
      2. the rates for the reflective health benefit plans described in subdivision (1) of this subsection (a) do not include funding to offset the loss of the federal cost-sharing reduction payments.
    3. To the extent not expressly prohibited under federal law, the Green Mountain Care Board shall ensure that funding to offset the loss of the federal cost-sharing reduction payments is included exclusively in silver-level qualified health benefit plans offered through the Vermont Health Benefit Exchange.
  1. A reflective health benefit plan shall comply with the requirements of section 1806 of this title except that the plan shall not be offered through the Vermont Health Benefit Exchange.

    Added 2017, No. 88 (Adj. Sess.), § 5, eff. Feb. 20, 2018; amended 2019, No. 19 , § 6, eff. Jan. 1, 2020.

History

Amendments--2019 Section heading: Substituted "health benefit" for "silver".

Subdiv. (a)(1): Deleted "silver-level" following "small employers", and inserted "reflective" following "nonqualified" in the first sentence, and deleted "silver-level" following "variation from," in the second sentence.

Subdiv. (a)(2)(A): Substituted "some or all" for "the silver-level".

Subdiv. (a)(2)(B): Substituted "health benefit" for "silver".

Subdiv. (a)(3): Added.

Subsec. (b): Substituted "health benefit" for "silver".

§ 1814. Maximum out-of-pocket limit for prescription drugs in bronze plans.

    1. Notwithstanding any provision of 8 V.S.A. § 4089i to the contrary, the Green Mountain Care Board may approve modifications to the out-of-pocket prescription drug limit established in 8 V.S.A. § 4089i for one or more bronze-level plans, as long as the Board finds that the offering of such plans will not adversely impact the plan options available to consumers with high prescription drug needs who benefit from the out-of-pocket prescription drug limit established in 8 V.S.A. § 4089i. (a) (1)  Notwithstanding any provision of 8 V.S.A. § 4089i to the contrary, the Green Mountain Care Board may approve modifications to the out-of-pocket prescription drug limit established in 8 V.S.A. § 4089i for one or more bronze-level plans, as long as the Board finds that the offering of such plans will not adversely impact the plan options available to consumers with high prescription drug needs who benefit from the out-of-pocket prescription drug limit established in 8 V.S.A. § 4089i.
    2. The Department of Vermont Health Access shall certify at least two standard bronze-level plans that include the out-of-pocket prescription drug limit established in 8 V.S.A. § 4089i, as long as the plans comply with federal requirements. Notwithstanding any provision of 8 V.S.A. § 4089i to the contrary, the Department may certify one or more bronze-level qualified health benefit plans with modifications to the out-of-pocket prescription drug limit established in 8 V.S.A. § 4089i.
    1. For each individual enrolled in a bronze-level qualified health benefit plan for the previous two plan years who had out-of-pocket prescription drug expenditures that met the out-of-pocket prescription drug limit established in 8 V.S.A. § 4089i for the most recent plan year for which information is available, the health insurer shall, absent an alternative plan selection or plan cancellation by the individual, automatically reenroll the individual in a bronze-level qualified health plan for the forthcoming plan year with an out-of-pocket prescription drug limit at or below the limit established in 8 V.S.A. § 4089i . (b) (1)  For each individual enrolled in a bronze-level qualified health benefit plan for the previous two plan years who had out-of-pocket prescription drug expenditures that met the out-of-pocket prescription drug limit established in 8 V.S.A. § 4089i for the most recent plan year for which information is available, the health insurer shall, absent an alternative plan selection or plan cancellation by the individual, automatically reenroll the individual in a bronze-level qualified health plan for the forthcoming plan year with an out-of-pocket prescription drug limit at or below the limit established in 8 V.S.A. § 4089i.
    2. Prior to reenrolling an individual in a plan pursuant to subdivision (1) of this subsection, the health insurer shall notify the individual of the insurer's intent to reenroll the individual automatically in a bronze-level qualified health plan for the forthcoming plan year with an out-of-pocket prescription drug limit at or below the limit established in 8 V.S.A. § 4089i unless the individual contacts the insurer to select a different plan and of the availability of bronze-level plans with higher out-of-pocket prescription drug limits. The health insurer shall collaborate with the Department of Vermont Health Access and the Office of the Health Care Advocate as to the notification's form and content.

      Added 2017, No. 210 (Adj. Sess.), § 12, eff. June 1, 2018.

Subchapter 2. Green Mountain Care

History

Legislative intent. 2011, No. 48 , § 1 provides: "(a) It is the intent of the general assembly to create Green Mountain Care to contain costs and to provide, as a public good, comprehensive, affordable, high-quality, publicly financed health care coverage for all Vermont residents in a seamless manner regardless of income, assets, health status, or availability of other health coverage. It is the intent of the general assembly to achieve health care reform through the coordinated efforts of an independent board, state government, and the citizens of Vermont, with input from health care professionals, businesses, and members of the public.

"(b) It is also the intent of the general assembly to maximize the receipt of federal funds, including those available pursuant to the Patient Protection and Affordable Care Act (Public Law 111-148), as amended by the federal Health Care and Education Reconciliation Act of 2010 (Public Law 111-152), and to create a reasonable plan to implement Green Mountain Care as set forth in this act."

2013, No. 144 (Adj. Sess.), § 1 provides: "The General Assembly adopts the following principles to guide the financing of health care in Vermont:

"(1) All Vermont residents have the right to high-quality health care.

"(2) To the extent that Green Mountain Care is financed through taxes, including mandatory premiums, the taxes shall be levied equitably, taking into account an individual's ability to pay and the value of the health benefits provided.

"(3) As provided in 33 V.S.A. § 1827, Green Mountain Care shall be the payer of last resort for Vermont residents who continue to receive health care through plans provided by an employer, by another state, by a foreign government, or as a retirement benefit.

"(4) Vermont's system for financing health care shall raise revenue sufficient to provide medically necessary health care services to all enrolled Vermont residents, including maternity and newborn care, pediatric care, vision and dental care for children, surgery and hospital care, emergency care, outpatient care, treatment for mental health conditions, and prescription drugs."

§ 1821. Purpose.

The purpose of Green Mountain Care is to provide, as a public good, comprehensive, affordable, high-quality, publicly financed health care coverage for all Vermont residents in a seamless and equitable manner regardless of income, assets, health status, or availability of other health coverage. Green Mountain Care shall contain costs by:

  1. providing incentives to residents to avoid preventable health conditions, promote health, and avoid unnecessary emergency room visits;
  2. establishing innovative payment mechanisms to health care professionals, such as global payments;
  3. encouraging the management of health services through the Blueprint for Health; and
  4. reducing unnecessary administrative expenditures.

    Added 2011, No. 48 , § 4.

§ 1822. Implementation; waiver.

  1. Green Mountain Care shall be implemented 90 days following the last to occur of:
    1. Receipt of a waiver under Section 1332 of the Affordable Care Act pursuant to subsection (b) of this section.
    2. Enactment of a law establishing the financing for Green Mountain Care.
    3. Approval by the Green Mountain Care Board of the initial Green Mountain Care benefit package pursuant to 18 V.S.A. § 9375 .
    4. Enactment of the appropriations for the initial Green Mountain Care benefit package proposed by the Green Mountain Care Board pursuant to 18 V.S.A. § 9375 .
    5. A determination by the Green Mountain Care Board, as the result of a detailed and transparent analysis, that each of the following conditions will be met:
      1. Each Vermont resident covered by Green Mountain Care will receive benefits with an actuarial value of 80 percent or greater.
      2. When implemented, Green Mountain Care will not have a negative aggregate impact on Vermont's economy. This determination shall include an analysis of the impact of implementation on economic growth.
      3. The financing for Green Mountain Care is sustainable. In this analysis, the Board shall consider at least a five-year revenue forecast using the consensus process established in 32 V.S.A. § 305a , projections of federal and other funds available to support Green Mountain Care, and estimated expenses for Green Mountain Care for an equivalent time period.
      4. Administrative expenses in Vermont's health care system for which data are available will be reduced below 2011 levels, adjusted for inflation and other factors as necessary to reflect the present value of 2011 dollars at the time of the analysis.
      5. Cost-containment efforts will result in a reduction in the rate of growth in Vermont's per-capita health care spending without reducing access to necessary care or resulting in excessive wait times for services.
      6. Health care professionals will be reimbursed at levels sufficient to allow Vermont to recruit and retain high-quality health care professionals.
  2. As soon as allowed under federal law, the Secretary of Administration shall seek a waiver to allow the State to suspend operation of the Vermont Health Benefit Exchange and to enable Vermont to receive the appropriate federal fund contribution in lieu of the federal premium tax credits, cost-sharing subsidies, and small business tax credits provided in the Affordable Care Act. The Secretary may seek a waiver from other provisions of the Affordable Care Act as necessary to ensure the operation of Green Mountain Care.
  3. The Green Mountain Care Board's analysis prepared pursuant to subdivision (a)(5) of this section shall be made available to the General Assembly and the public and shall include:
    1. a complete fiscal projection of revenues and expenses, as described in subdivision (a)(5) of this section, including reserves, if recommended, and other costs in addition to the cost of services, over at least a five-year period for a public-private universal health care system providing benefits with an actuarial value of 80 percent or greater;
    2. the financing plans provided to the General Assembly in January 2013 pursuant to 2011 Acts and Resolves No. 48, Sec. 9;
    3. an analysis of how implementing Green Mountain Care will further the principles of health care reform expressed in 18 V.S.A. § 9371 beyond the reforms established through the Blueprint for Health; and
    4. a comparison of best practices for reducing health care costs in self-funded plans, if available.

      Added 2011, No. 48 , § 4; amended 2011, No. 171 (Adj. Sess.), § 36a, eff. May 16, 2012.

History

Reference in text. Section 1332 of the Affordable Care Act, referred to in subdiv. (a)(1), is codified as 42 U.S.C. § 18052.

Amendments--2011 (Adj. Sess.). Subdiv. (a)(5): Amended generally.

Subsec. (c): Added.

§ 1823. Definitions.

As used in this subchapter:

  1. "Agency" means the Agency of Human Services.
  2. "Board" means the Green Mountain Care Board established in 18 V.S.A. chapter 220.
  3. "CHIP funds" means federal funds available under Title XXI of the Social Security Act.
  4. "Chronic care" means health services provided by a health care professional for an established clinical condition that is expected to last a year or more and that requires ongoing clinical management attempting to restore the individual to highest function, minimize the negative effects of the condition, prevent complications related to chronic conditions, engage in advanced care planning, and promote appropriate access to palliative care. Examples of chronic conditions include diabetes, hypertension, cardiovascular disease, cancer, asthma, pulmonary disease, substance abuse, mental condition or psychiatric disability, spinal cord injury, and hyperlipidemia.
  5. "Chronic care management" means a system of coordinated health care interventions and communications for individuals with chronic conditions, including significant patient self-care efforts, systemic supports for licensed health care practitioners and their patients, and a plan of care emphasizing prevention of complications utilizing evidence-based practice guidelines, patient empowerment strategies, and evaluation of clinical, humanistic, and economic outcomes on an ongoing basis with the goal of improving overall health.
  6. "Health care professional" means an individual, partnership, corporation, facility, or institution licensed, certified, or otherwise authorized by Vermont law to provide professional health services.
  7. "Health service" means any treatment or procedure delivered by a health care professional to maintain an individual's physical or mental health or to diagnose or treat an individual's physical or mental condition, including services ordered by a health care professional, chronic care management, preventive care, wellness services, and medically necessary services to assist in activities of daily living.
  8. "Hospital" shall have the same meaning as in 18 V.S.A. § 1902 and may include hospitals located outside the State.
  9. "Preventive care" means health services provided by health care professionals to identify and treat asymptomatic individuals who have risk factors or preclinical disease, but in whom the disease is not clinically apparent, including immunizations and screening, counseling, treatment, and medication determined by scientific evidence to be effective in preventing or detecting a condition.
  10. "Primary care" means health services provided by health care professionals, including naturopathic physicians licensed pursuant to 26 V.S.A. chapter 81, who are specifically trained for and skilled in first-contact and continuing care for individuals with signs, symptoms, or health concerns, not limited by problem origin, organ system, or diagnosis, and shall include family planning, prenatal care, and mental health and substance abuse treatment.
  11. "Secretary" means the Secretary of Human Services.
  12. "Vermont resident" means an individual domiciled in Vermont as evidenced by an intent to maintain a principal dwelling place in Vermont indefinitely and to return to Vermont if temporarily absent, coupled with an act or acts consistent with that intent. An individual shall not be considered to be a Vermont resident if he or she is 18 years of age or older and is claimed as a dependent on the tax return of a resident of another State.
  13. "Wellness services" means health services, programs, or activities that focus on the promotion or maintenance of good health.

    Added 2011, No. 48 , § 4; amended 2011, No. 96 (Adj. Sess.), § 6, eff. May 2, 2012; 2013, No. 96 (Adj. Sess.), § 203.

History

Reference in text. Title XXI of the Social Security Act, referred to in subdiv. (3), is codified as 42 U.S.C. §§ 1397aa-1397mm.

Amendments--2013 (Adj. Sess.). Undesignated paragraph: Substituted "As used in" for "For purposes of".

Subdiv. (4): Substituted "mental condition or psychiatric disability" for "mental illness" following "substance abuse,".

Subdiv. (7): Deleted "health" preceding "condition".

Amendments--2011 (Adj. Sess.) Subdiv. (10): Inserted "including naturopathic physicians licensed pursuant to 26 V.S.A. chapter 81, who are" preceding "specifically trained for and skilled in".

§ 1824. Eligibility.

    1. Upon implementation, all Vermont residents shall be eligible for Green Mountain Care, regardless of whether an employer offers health insurance for which they are eligible. The Agency shall establish standards by rule for proof and verification of residency. (a) (1)  Upon implementation, all Vermont residents shall be eligible for Green Mountain Care, regardless of whether an employer offers health insurance for which they are eligible. The Agency shall establish standards by rule for proof and verification of residency.
      1. Except as otherwise provided in subdivision (C) of this subdivision (2), if an individual is determined to be eligible for Green Mountain Care based on information later found to be false, the Agency shall make reasonable efforts to recover from the individual the amounts expended for his or her care. In addition, if the individual knowingly provided the false information, he or she shall be assessed an administrative penalty of not more than $5,000.00. (2) (A) Except as otherwise provided in subdivision (C) of this subdivision (2), if an individual is determined to be eligible for Green Mountain Care based on information later found to be false, the Agency shall make reasonable efforts to recover from the individual the amounts expended for his or her care. In addition, if the individual knowingly provided the false information, he or she shall be assessed an administrative penalty of not more than $5,000.00.
      2. The Agency shall include information on the Green Mountain Care application to provide notice to applicants of the penalty for knowingly providing false information as established in subdivision (A) of this subdivision (2).
      3. An individual determined to be eligible for Green Mountain Care whose health services are paid in whole or in part by Medicaid funds who commits fraud shall be subject to the provisions of chapter 1, subchapter 5 of this title in lieu of the administrative penalty described in subdivision (A) of this subdivision (2).
      4. Nothing in this section shall be construed to limit or restrict prosecutions under any applicable provision of law.
      1. Except as otherwise provided in this section, a person who is not a Vermont resident shall not be eligible for Green Mountain Care. (3) (A) Except as otherwise provided in this section, a person who is not a Vermont resident shall not be eligible for Green Mountain Care.
      2. Except as otherwise provided in subdivision (C) of this subdivision (3), an individual covered under Green Mountain Care shall inform the Agency within 60 days of becoming a resident of another state. An individual who obtains or attempts to obtain health services through Green Mountain Care more than 60 days after becoming a resident of another state shall reimburse the Agency for the amounts expended for his or her care and shall be assessed an administrative penalty of not more than $1,000.00 for a first violation and not more than $2,000.00 for any subsequent violation.
      3. An individual whose health services are paid in whole or in part by Medicaid funds who obtains or attempts to obtain health services through Green Mountain Care more than 60 days after becoming a resident of another state shall be subject to the provisions of chapter 1, subchapter 5 of this title in lieu of the administrative penalty described in subdivision (B) of this subdivision (3).
      4. Nothing in this section shall be construed to limit or restrict prosecutions under any applicable provision of law.
  1. The Agency shall establish a procedure to enroll residents in Green Mountain Care.
    1. The Agency shall establish by rule a process to allow health care professionals to presume an individual is eligible based on the information provided on a simplified application. (c) (1)  The Agency shall establish by rule a process to allow health care professionals to presume an individual is eligible based on the information provided on a simplified application.
    2. After submission of the application, the Agency shall collect additional information as necessary to determine whether Medicaid, Medicare, CHIP, or other federal funds may be applied toward the cost of the health services provided, but shall provide payment for any health services received by the individual from the time the application is submitted.
    3. If an individual presumed eligible for Green Mountain Care pursuant to subdivision (1) of this subsection is later determined not to be eligible for the program, the Agency shall make reasonable efforts to recover from the individual the amounts expended for his or her care.
  2. The Agency shall adopt rules pursuant to 3 V.S.A. chapter 25 to ensure that Vermont residents who are temporarily out of the State and who intend to return and reside in Vermont remain eligible for Green Mountain Care while outside Vermont.
  3. A nonresident visiting Vermont, or his or her insurer, shall be billed for all services received. The Agency may enter into intergovernmental arrangements or contracts with other states and countries to provide reciprocal coverage for temporary visitors and shall adopt rules pursuant to 3 V.S.A. chapter 25 to carry out the purposes of this subsection.

    Added 2011, No. 48 , § 4.

§ 1825. Health benefits.

    1. Green Mountain Care shall include primary care, preventive care, chronic care, acute episodic care, and hospital services and shall include at least the same covered services as those included in the benefit package in effect for the lowest cost Catamount Health plan offered on January 1, 2011. (a) (1)  Green Mountain Care shall include primary care, preventive care, chronic care, acute episodic care, and hospital services and shall include at least the same covered services as those included in the benefit package in effect for the lowest cost Catamount Health plan offered on January 1, 2011.
    2. It is the intent of the General Assembly that Green Mountain Care provide a level of coverage that includes benefits that are actuarially equivalent to at least 87 percent of the full actuarial value of the covered health services.
    3. The Green Mountain Care Board shall consider whether to impose cost-sharing requirements; if so, whether to make the cost-sharing requirements income-sensitized; and the impact of any cost-sharing requirements on an individual's ability to access care. The Board shall consider waiving any cost-sharing requirement for evidence-based primary and preventive care; for palliative care; and for chronic care for individuals participating in chronic care management and, where circumstances warrant, for individuals with chronic conditions who are not participating in a chronic care management program.
      1. The Green Mountain Care Board established in 18 V.S.A. chapter 220 shall consider whether to include dental, vision, and hearing benefits in the Green Mountain Care benefit package. (4) (A) The Green Mountain Care Board established in 18 V.S.A. chapter 220 shall consider whether to include dental, vision, and hearing benefits in the Green Mountain Care benefit package.
      2. The Green Mountain Care Board shall consider whether to include long-term care benefits in the Green Mountain Care benefit package.
    4. Green Mountain Care shall not limit coverage of preexisting conditions.
    5. The Green Mountain Care Board shall approve the benefit package and present it to the General Assembly as part of its recommendations for the Green Mountain Care budget.
      1. For individuals eligible for Medicaid or CHIP, the benefit package shall include the benefits required by federal law, as well as any additional benefits provided as part of the Green Mountain Care benefit package. (b) (1) (A)  For individuals eligible for Medicaid or CHIP, the benefit package shall include the benefits required by federal law, as well as any additional benefits provided as part of the Green Mountain Care benefit package.
      2. Upon implementation of Green Mountain Care, the benefit package for individuals eligible for Medicaid or CHIP shall also include any optional Medicaid benefits pursuant to 42 U.S.C. § 1396d or services covered under the State plan for CHIP as provided in 42 U.S.C. § 1397c c for which these individuals are eligible on January 1, 2014. Beginning with the second year of Green Mountain Care and going forward, the Green Mountain Care Board may, consistent with federal law, modify these optional benefits, as long as at all times the benefit package for these individuals contains at least the benefits described in subdivision (A) of this subdivision (b)(1).
    1. For children eligible for benefits paid for with Medicaid funds, the benefit package shall include early and periodic screening, diagnosis, and treatment services as defined under federal law.
    2. For individuals eligible for Medicare, the benefit package shall include the benefits provided to these individuals under federal law, as well as any additional benefits provided as part of the Green Mountain Care benefit package.

      Added 2011, No. 48 , § 4.

§ 1826. Blueprint for Health.

  1. It is the intent of the General Assembly that within five years following the implementation of Green Mountain Care, each individual enrolled in Green Mountain Care will have a primary health care professional who is involved with the Blueprint for Health established in 18 V.S.A. chapter 13.
  2. Consistent with the provisions of 18 V.S.A. chapter 13, if an individual enrolled in Green Mountain Care does not have a medical home through the Blueprint for Health, the individual may choose a primary health care professional who is not participating in the Blueprint to serve as the individual's primary care point of contact.
  3. The Agency shall determine a method to approve a specialist as a patient's primary health care professional for the purposes of establishing a medical home or primary care point of contact for the patient. The Agency shall approve a specialist as a patient's medical home or primary care point of contact on a case-by-case basis and only for a patient who receives the majority of his or her health care from that specialist.
  4. Green Mountain Care shall be integrated with the Blueprint for Health established in 18 V.S.A. chapter 13.

    Added 2011, No. 48 , § 4.

§ 1827. Administration; enrollment.

    1. The Agency shall, under an open bidding process, solicit bids from and award contracts to public or private entities for administration of certain elements of Green Mountain Care, such as claims administration and provider relations. (a) (1)  The Agency shall, under an open bidding process, solicit bids from and award contracts to public or private entities for administration of certain elements of Green Mountain Care, such as claims administration and provider relations.
    2. The Agency shall ensure that entities awarded contracts pursuant to this subsection do not have a financial incentive to restrict individuals' access to health services. The Agency may establish performance measures that provide incentives for contractors to provide timely, accurate, transparent, and courteous services to individuals enrolled in Green Mountain Care and to health care professionals.
    3. When considering contract bids pursuant to this subsection, the Agency shall consider the interests of the State relating to the economy, the location of the entity, and the need to maintain and create jobs in Vermont. The Agency may utilize an econometric model to evaluate the net costs of each contract bid.
  1. Nothing in this subchapter shall require an individual with health coverage other than Green Mountain Care to terminate that coverage.
  2. An individual enrolled in Green Mountain Care may elect to maintain supplemental health insurance if the individual so chooses.
  3. Except for cost-sharing, Vermonters shall not be billed any additional amount for health services covered by Green Mountain Care.
  4. [Repealed.]
  5. Green Mountain Care shall be the payer of last resort with respect to any health service that may be covered in whole or in part by any other health benefit plan, including Medicare, private health insurance, retiree health benefits, or federal health benefit plans offered by the military or to federal employees.
  6. The Agency may seek a waiver under Section 1115 of the Social Security Act to include Medicaid and under Section 2107(e)(2)(A) of the Social Security Act to include CHIP in Green Mountain Care. If the Agency is unsuccessful in obtaining one or both of these waivers, Green Mountain Care shall be the secondary payer with respect to any health service that may be covered in whole or in part by Title XIX of the Social Security Act (Medicaid) or Title XXI of the Social Security Act (CHIP), as applicable.
  7. Any prescription drug coverage offered by Green Mountain Care shall be consistent with the standards and procedures applicable to the pharmacy best practices and cost control program established in section 1998 of this title.
  8. Green Mountain Care shall maintain a robust and adequate network of health care professionals located in Vermont or regularly serving Vermont residents, including mental health and substance abuse professionals. The Agency shall contract with outside entities as needed to allow for the appropriate portability of coverage under Green Mountain Care for Vermont residents who are temporarily out of the State.
  9. The Agency shall make available the necessary information, forms, access to eligibility or enrollment systems, and billing procedures to health care professionals to ensure immediate enrollment for individuals in Green Mountain Care at the point of service or treatment.
  10. An individual aggrieved by an adverse decision of the Agency or plan administrator may appeal to the Human Services Board as provided in 3 V.S.A. § 3090 .
  11. The Agency, in collaboration with the Department of Financial Regulation, shall monitor the extent to which residents of other states move to Vermont for the purpose of receiving health services and the impact, positive or negative, of any such migration on Vermont's health care system and on the State's economy, and make appropriate recommendations to the General Assembly based on its findings.

    Added 2011, No. 48 , § 4; amended 2013, No. 144 (Adj. Sess.), § 6, eff. May 27, 2014; 2015, No. 23 , § 55.

History

Reference in text. The Medicaid Section 1115 waiver, referred to in subsec. (g), is authorized pursuant to Section 1115 of the Social Security Act, which is codified as 42 U.S.C. § 1315.

The Section 2107 CHIP waiver, referred to in subsec. (g), is codified as 42 U.S.C. § 1397gg.

Title XIX of the Social Security Act, referred to in subsec. (g), is codified as 42 U.S.C. § 1396 et seq.

Title XXI (CHIP) of the Social Security Act, referred to in subsec. (g), is codified as 42 U.S.C. §§ 1397aa-1397mm.

2012. In subsec. ( l ), substituted "commissioner of financial regulation" for "commissioner of banking, insurance, securities, and health care administration" in accordance with 2011, No, 78 (Adj. Sess.), § 2.

Amendments--2015. Subsec. (h): Substituted "section 1998" for "sections 1996 and 1998".

Amendments--2013 (Adj. Sess.). Subsec. (f): Substituted "payer of last resort" for "secondary payer" following "shall be the", inserted "Medicare," following "including", and deleted "the Veterans' Administration, by" following "benefit plans offered by".

§ 1828. Budget proposal.

The Green Mountain Care Board, in collaboration with the Agencies of Administration and of Human Services, shall be responsible for developing each year a three-year Green Mountain Care budget for proposal to the General Assembly and to the Governor, to be adjusted annually in response to realized revenues and expenditures, that reflects any modifications to the benefit package and includes recommended appropriations, revenue estimates, and necessary modifications to tax rates and other assessments.

Added 2011, No. 48 , § 4.

§ 1829. Green Mountain Care Fund.

  1. The Green Mountain Care Fund is established in the State Treasury as a special fund to be the single source to finance health care coverage for Green Mountain Care.
  2. Into the Fund shall be deposited:
    1. transfers or appropriations from the General Fund, authorized by the General Assembly;
    2. if authorized by a waiver from federal law, federal funds for Medicaid, Medicare, and the Vermont Health Benefit Exchange established in chapter 18, subchapter 1 of this title; and
    3. the proceeds from grants, donations, contributions, taxes, and any other sources of revenue as may be provided by statute or by rule.
  3. The Fund shall be administered pursuant to 32 V.S.A. chapter 7, subchapter 5, except that interest earned on the Fund and any remaining balance shall be retained in the Fund. The Agency shall maintain records indicating the amount of money in the Fund at any time.
  4. All monies received by or generated to the Fund shall be used only for:
    1. the administration and delivery of health services covered by Green Mountain Care as provided in this subchapter; and
    2. expenses related to the duties and operation of the Green Mountain Care Board pursuant to 18 V.S.A. chapter 220.

      Added 2011, No. 48 , § 4.

§ 1830. Collective bargaining rights.

Nothing in this subchapter shall be construed to limit the ability of collective bargaining units to negotiate for coverage of health services pursuant to 3 V.S.A. § 904 or any other provision of law.

Added 2011, No. 48 , § 4.

§ 1831. Public process.

The Agency of Human Services shall provide a process for soliciting public input on the Green Mountain Care benefit package on an ongoing basis, including a mechanism by which members of the public may request inclusion of particular benefits or services. The process may include receiving written comments on proposed new or amended rules or holding public hearings or both.

Added 2011, No. 48 , § 4.

§ 1832. Rulemaking.

The Secretary of Human Services may adopt rules pursuant to 3 V.S.A. chapter 25 to carry out the purposes of this subchapter. When establishing rules relating to the Green Mountain Care benefit package, the Secretary shall ensure that the rules are consistent with the benefit package defined by the Green Mountain Care Board pursuant to section 1825 of this title and to 18 V.S.A. chapter 220.

Added 2011, No. 48 , § 4.

CHAPTER 19. MEDICAL ASSISTANCE

Subchapter 1. Medicaid

History

Revision note. Added the subchapter 1 designation and heading for purposes of conformity with V.S.A. style in view of the addition of subchapter 2 of this chapter, consisting of sections 1950-1958.

Spousal income disregard; rulemaking. 2011, No. 132 (Adj. Sess.), § 2 provides: "(a) If supported by the analysis performed pursuant to Sec. 1(a)(4) of this act, the secretary of human services shall disregard the income of an individual receiving Medicaid pursuant to 33 V.S.A. § 1902(b) in determining the eligibility of such person's spouse to receive medical assistance pursuant to Title XIX (Medicaid) of the Social Security Act. The secretary shall implement the income disregard in a timely manner in order to ensure that it will be in place as soon as practicable when the new Medicaid eligibility and enrollment system is operational.

"(b) The secretary of human services shall adopt rules pursuant to 3 V.S.A. chapter 25 as necessary to implement the income disregard."

Developmental disability services. 2011, No. 132 (Adj. Sess.), § 3 provides: "If supported by the analysis performed pursuant to Sec. 1(a)(6) of this act, the secretary of human services shall deem an individual's enrollment in the Medicaid for Working People with Disabilities program as establishing his or her financial eligibility for developmental disability services under the state's Global Commitment to Health waiver; provided that the individual shall still be required to meet clinical eligibility and funding priority criteria in order to receive developmental disability services pursuant to the waiver. The secretary shall implement the change to the financial eligibility criteria in a timely manner in order to ensure that it will be in place as soon as practicable when the new Medicaid eligibility and enrollment system is operational."

Health care coverage; legal immigrant children and pregnant women. 2011, No. 162 (Adj. Sess.), § E.309(a) provides: "Beginning July 1, 2012 and thereafter, in accordance with the provisions of the federal Children's Health Insurance Program Reauthorization Act of 2009, Public Law 111-3, Section 214, the agency of human services shall provide coverage under Medicaid and CHIP to legal immigrant children and pregnant women who are residing lawfully in Vermont and who have not met the five-year waiting period required under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996."

§ 1900. Definitions.

As used in this subchapter, unless otherwise indicated:

  1. "Agency" means the Agency of Human Services.
  2. "Commissioner" means the Commissioner of Vermont Health Access.
  3. "Department" means the Department of Vermont Health Access.
  4. "Insurer" means any insurance company, prepaid health care delivery plan, self-funded employee benefit plan, pension fund, hospital or medical service corporation, managed care organization, pharmacy benefit manager, prescription drug plan, retirement system, or similar entity that is under an obligation to make payments for medical services as a result of an injury, illness, or disease suffered by an individual.
  5. "Legally liable representative" means a parent or person with an obligation of support to a recipient whether by contract, court order, or statute.
  6. "Provider" means any person who has entered into an agreement with the State to provide any medical service.
  7. "Recipient" means any person or group of persons who receive Medicaid.
  8. "Secretary" means the Secretary of Human Services.
  9. "Third party" means a person having an obligation to pay all or any portion of the medical expense incurred by a recipient at the time the medical service was provided. The obligation is not discharged by virtue of being undiscovered or undeveloped at the time a Medicaid claim is paid. Third parties include:
    1. Medicare;
    2. health insurance, including health and accident but not that portion specifically designated for "income protection" that has been considered in determining recipient eligibility to participate in the Medicaid program;
    3. medical coverage provided in conjunction with other benefit or compensation programs, including military and veteran programs or workers' compensation;
    4. liability for medical expenses as agreed to or ordered in negligence suits, support settlements, or trust funds; and
    5. managed care organizations, pharmacy benefit managers, self-insured plans, and other entities that are, by statute, contract, or agreement, legally responsible for the payment of a claim for a health care item or service.
  10. "Tobacco" means all products listed in 7 V.S.A. § 1001(3) .
  11. "Tobacco manufacturer" means any person engaged in the process of designing, fabricating, assembling, producing, constructing, or otherwise preparing a product containing tobacco, including packaging or labeling of these products, with the intended purpose of selling the product for gain or profit. "Tobacco manufacturer" does not include persons whose activity is limited to growing natural leaf tobacco or to selling tobacco products at wholesale or retail to customers. "Tobacco manufacturer" also does not include any person who manufactures or produces firearms, dairy products, products containing alcohol, or other nontobacco products, unless such person also manufactures or produces tobacco products.

    Added 2013, No. 131 (Adj. Sess.), § 38, eff. May 20, 2014.

§ 1901. Administration of program.

    1. The Secretary of Human Services or designee shall take appropriate action, including making of rules, required to administer a medical assistance program under Title XIX (Medicaid) and Title XXI (SCHIP) of the Social Security Act. (a) (1)  The Secretary of Human Services or designee shall take appropriate action, including making of rules, required to administer a medical assistance program under Title XIX (Medicaid) and Title XXI (SCHIP) of the Social Security Act.
    2. The Secretary or designee shall seek approval from the General Assembly prior to applying for and implementing a waiver of Title XIX or Title XXI of the Social Security Act, an amendment to an existing waiver, or a new state option that would restrict eligibility or benefits pursuant to the Deficit Reduction Act of 2005. Approval by the General Assembly under this subdivision constitutes approval only for the changes that are scheduled for implementation.
    3. [Repealed.]
    4. A manufacturer of pharmaceuticals purchased by individuals receiving State pharmaceutical assistance in programs administered under this chapter shall pay to the Department of Vermont Health Access, as the Secretary's designee, a rebate on all pharmaceutical claims for which State-only funds are expended in an amount that is in proportion to the State share of the total cost of the claim, as calculated annually on an aggregate basis, and based on the full Medicaid rebate amount as provided for in Section 1927(a) through (c) of the federal Social Security Act, 42 U.S.C. § 1396r -8.
  1. [Repealed.]
  2. The Secretary may charge a monthly premium, in amounts set by the General Assembly, per family for pregnant women and children eligible for medical assistance under Sections 1902(a)(10)(A)(i)(III), (IV), (VI), and (VII) of Title XIX of the Social Security Act, whose family income exceeds 195 percent of the federal poverty level, as permitted under section 1902(r)(2) of that act. Fees collected under this subsection shall be credited to the State Health Care Resources Fund established in section 1901d of this title and shall be available to the Agency to offset the costs of providing Medicaid services. Any co-payments, coinsurance, or other cost sharing to be charged shall also be authorized and set by the General Assembly.
    1. To enable the State to manage public resources effectively while preserving and enhancing access to health care services in the State, the Department of Vermont Health Access is authorized to serve as a publicly operated managed care organization (MCO). (d) (1)  To enable the State to manage public resources effectively while preserving and enhancing access to health care services in the State, the Department of Vermont Health Access is authorized to serve as a publicly operated managed care organization (MCO).
    2. To the extent permitted under federal law, the Department of Vermont Health Access shall be exempt from any health maintenance organization (HMO) or MCO statutes in Vermont law and shall not be considered to be an HMO or MCO for purposes of State regulatory and reporting requirements. The MCO shall comply with the federal rules governing managed care organizations in 42 C.F.R. Part 438. The Vermont rules on the primary care case management in the Medicaid program shall be amended to apply to the MCO except to the extent that the rules conflict with the federal rules.
    3. The Agency of Human Services and Department of Vermont Health Access shall report to the Health Care Oversight Committee about implementation of Global Commitment in a manner and at a frequency to be determined by the Committee. Reporting shall, at a minimum, enable the tracking of expenditures by eligibility category, the type of care received, and to the extent possible allow historical comparison with expenditures under the previous Medicaid appropriation model (by department and program) and, if appropriate, with the amounts transferred by another department to the Department of Vermont Health Access. Reporting shall include spending in comparison to any applicable budget neutrality standards.
  3. [Repealed.]
  4. The Secretary shall not impose a prescription co-payment for individuals under age 21 enrolled in Medicaid or Dr. Dynasaur.
  5. The Department of Vermont Health Access shall post prominently on its website the total per-member per-month cost for each of its Medicaid and Medicaid waiver programs and the amount of the State's share and the beneficiary's share of such cost.
  6. To the extent required to avoid federal antitrust violations, the Department of Vermont Health Access shall facilitate and supervise the participation of health care professionals and health care facilities in the planning and implementation of payment reform in the Medicaid and SCHIP programs. The Department shall ensure that the process and implementation include sufficient State supervision over these entities to comply with federal antitrust provisions and shall refer to the Attorney General for appropriate action the activities of any individual or entity that the Department determines, after notice and an opportunity to be heard, violate State or federal antitrust laws without a countervailing benefit of improving patient care, improving access to health care, increasing efficiency, or reducing costs by modifying payment methods.

    Added 1967, No. 147 , § 6; amended 1997, No. 155 (Adj. Sess.), § 21; 2005, No. 159 (Adj. Sess.), § 2; 2005, No. 215 (Adj. Sess.), § 308, eff. May 31, 2006; 2007, No. 74 , § 3, eff. June 6, 2007; 2009, No. 156 (Adj. Sess.), § E.309.15, eff. June 3, 2010; 2009, No. 156 (Adj. Sess.), § I.43; 2011, No. 48 , § 16a, eff. Jan. 1, 2012; 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012; 2011, No. 162 (Adj. Sess.), § E.307.6; 2011, No. 171 (Adj. Sess.), § 41c; 2013, No. 79 , § 23, eff. Jan. 1, 2014; 2013, No. 79 , § 46; 2013, No. 131 (Adj. Sess.), § 39, eff. May 20, 2014; 2013, No. 142 (Adj. Sess.), § 98; 2017, No. 210 (Adj. Sess.), § 3, eff. June 1, 2018.

History

Reference in text. Title XXI (SCHIP) of the Social Security Act, referred to in this section, is codified as 42 U.S.C. §§ 1397aa-1397mm.

Title XIX of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1396 et seq.

Section 1902 of Title XIX of the Social Security Act, referred to in subsec. (c), is codified as 42 U.S.C. § 1396a.

Amendments--2017 (Adj. Sess.). Subsec. (c): Substituted "195" for "185" following "income exceeds" in the first sentence.

Amendments--2013 (Adj. Sess.). Subdiv. (e)(1): Amended by Act No. 131.

Subdivs. (e)(1), (e)(2): Repealed by Act No. 142.

Amendments--2013. Subsec. (b): Deleted effective January 1, 2014.

Subsec. (h): Added.

Amendments--2011 (Adj. Sess.). Subdiv. (a)(3): Repealed by Act No. 139.

Subdiv. (a)(4): Act No. 162 substituted "pharmaceutical claims" for "pharmaceuticals" following "all" and "that is in proportion to the state share of the total cost of the claim, as calculated annually on an aggregate basis, and based on the full Medicaid rebate amount as provided for in Section 1927(a) through (c) of the federal Social Security Act, 42 U.S.C. Section 1396r-8" for "at least as favorable as the rebates provided under 42 U.S.C. section 1396r-8 paid to the department in connection with Medicaid and programs funded under the Global Commitment to Health Medicaid Section 1115 waiver" following "amount".

Subdivs. (d)(3), (e)(2): Act No. 171 substituted "health care oversight committee" for "health access oversight committee".

Amendments--2011. Subsec. (g): Added.

Amendments--2009 (Adj. Sess.) Added subdiv. (a)(4), substituted "department of Vermont health access" for "office of Vermont health access" wherever it appeared in subsecs. (d) and (e), "another department" for "the department" in subdiv. (d)(3), and "department for children and families and the department of Vermont health access shall" for "department and the office shall" in subdiv. (e)(2).

Amendments--2007. Subsec. (f): Added.

Amendments--2005 (Adj. Sess.). Act No. 159 added subsecs. (d) and (e).

Act No. 215 amended the section generally.

Amendments--1997 (Adj. Sess.). Added subsecs. (b) and (c).

Prospective repeal of subdiv. (d). 2005, No. 215 (Adj. Sess.), § 312(a), provides: "(a) Upon the expiration of the Global Commitment for Health Medicaid waiver approved under Section 1115 of the Social Security Act or any extensions of this waiver, subsection 1901(d) of Title 33 shall be repealed".

Effective date; applicability and reporting requirement. 2011, No. 48 , § 34(g) provides: "Secs. 16 [which added 21 V.S.A. § 2004] (health benefit information) and 16a [which enacted subsec. (g) of this section] (Medicaid program costs) shall take effect on January 1, 2012, and the reporting requirement shall apply to each calendar year, beginning with 2012."

Prior law. 33 V.S.A. § 2901.

ANNOTATIONS

Analysis

1. Purpose.

The Legislature in amending this section by adding reference to "Title XIX of Public Law 89-97" intended to enact in concise and compact form legislation sufficiently broad and general in its scope to permit the State of Vermont to comply with and implement in any way which is not implemented by other existing statutes, all the requirements of Title XIX, and to designate Social Welfare, acting through the Commissioner with the approval of the board, as the single state agency not only to administer the medical assistance plan, but through the power of the Commissioner to promulgate necessary rules and regulations, to prepare and submit the plan itself. 1964-66 Op. Atty. Gen. 201.

2. Construction.

This section by granting to the Commissioner of Social Welfare the power to promulgate rules and regulations to implement the Title XIX program for the State, necessarily includes within its scope the authority to prescribe thereunder, and by administrative action to determine in individual cases, eligibility for, and the type and degree of medical assistance which may be made available under the program. 1964-66 Op. Atty. Gen. 201.

Cited. State v. Chenette, 151 Vt. 237, 560 A.2d 365 (1989).

§ 1901a. Medicaid budget.

  1. The General Assembly shall approve each year a Medicaid budget. The annual Medicaid budget shall include an annual financial plan, and a five-year financial plan accounting for expenditures and revenues relating to Medicaid and any other health care assistance program administered by the Agency of Human Services.
  2. The Secretary of Human Services or his or her designee and the Commissioner of Finance and Management shall provide quarterly to the Joint Fiscal Committee such information and analysis as the Committee reasonably determines is necessary to assist the General Assembly in the preparation of the Medicaid budget.

    Added 2001, No. 142 (Adj. Sess.), § 148a; amended 2005, No. 215 (Adj. Sess.), § 309, eff. May 31, 2006; 2019, No. 144 (Adj. Sess.), § 31.

History

Amendments--2019 (Adj. Sess.). Subsec. (b): Deleted "and the Legislative Council" following "Fiscal Committee", deleted "and the Council" preceding "reasonably", and substituted "determines" for "determine".

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "agency of human services" for "department of prevention, assistance, transition, and health access".

Subsec. (b): Substituted "secretary of human services or his or her designee" for "commissioner of prevention, assistance, transition, and health access".

§ 1901b. Pharmacy program enrollment.

  1. The Department of Vermont Health Access and the Department for Children and Families shall monitor actual caseloads, revenue, and expenditures; anticipated caseloads, revenue, and expenditures; and actual and anticipated savings from implementation of the preferred drug list, supplemental rebates, and other cost containment activities in each State pharmaceutical assistance program, including VPharm. When applicable, the Departments shall allocate supplemental rebate savings to each program proportionate to expenditures in each program.
  2. As used in this section, "State pharmaceutical assistance program" means any health assistance programs administered by the Agency of Human Services providing prescription drug coverage, including the Medicaid program, VPharm, the State Children's Health Insurance Program, the State of Vermont AIDS Medication Assistance Program, the General Assistance Program, the Pharmacy Discount Plan Program, and any other health assistance programs administered by the Agency providing prescription drug coverage.

    Added 2001, No. 142 (Adj. Sess.), § 148b; amended 2005, No. 174 (Adj. Sess.), § 94; 2005, No. 215 (Adj. Sess.), §§ 316, 317; 2009, No. 156 (Adj. Sess.), § I.44; 2011, No. 171 (Adj. Sess.), § 41c; 2013, No. 79 , § 47, eff. Jan. 1, 2014.

History

Reference in text. Section 1115 of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1315.

Amendments--2013. Subsec. (a): Deleted "and VermontRx" following "VPharm"; substituted "When applicable, the Departments" for "The departments" preceding "shall"; and deleted the former third sentence.

Subsec. (b): Rewrote the subsection.

Amendments--2011 (Adj. Sess.). Substituted "health care oversight committee" for "health access oversight committee" in subsecs. (a), (b)(1), (b)(2), and (c)(1).

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "department of Vermont health" for "office of Vermont health" in the first sentence, "departments" for "department and the office" preceding "shall allocate" in the second sentence, and "department of Vermont health access" for "office" in the last sentence.

Subsec. (b): Substituted "department of Vermont health access" for "office" in subdivs. (1) and (2), and (4), and deleted "office's" preceding "determines" and inserted "of the department of Vermont health access" in two places in subdiv. (3).

Subsec. (c): Substituted "department of Vermont health access" for "office" in subdivs (1) and (3), and deleted "office's" preceding "determination" and inserted "of the department of Vermont health access" in the first sentence, and added "of the department of Vermont health access" in the second sentence of subdiv. (2).

Subsec. (d): Deleted "but not limited to" preceding "the Medicaid program" in subdiv. (1).

Amendments--2005 (Adj. Sess.). Act No. 174 amended the section generally.

Act No. 215 deleted "for the Vermont health access trust fund" following "official revenue estimates" in the first sentence in subdivs. (b)(3) and (c)(2).

§ 1901c. Repealed. 2011, No. 48, § 32.

History

Former § 1901c. Former § 1901c, relating to the medical care advisory committee, was derived from 2003, No. 122 (Adj. Sess.), § 130a; and amended by 2005, No. 174 (Adj. Sess.), § 95; 2007, No. 172 (Adj. Sess.), § 10; 2009, No. 156 (Adj. Sess.), § I.45; and 2011, No. 48 , § 32.

§ 1901d. State Health Care Resources Fund.

  1. The State Health Care Resources Fund is established in the State Treasury as a special fund to be a source of financing for health care coverage for beneficiaries of the State health care assistance programs under the Global Commitment to Health waiver approved by the Centers for Medicare and Medicaid Services under Section 1115 of the Social Security Act.
  2. Into the Fund shall be deposited:
    1. -(4) [Repealed.]

      (5) premium amounts paid by individuals unless paid directly to the insurer; and

      (6) the proceeds from grants, donations, contributions, taxes, recoveries, and any other sources of revenue as may be provided by statute, rule, agreement, or act of the General Assembly.

      (7) [Repealed.]

  3. The Fund shall be administered pursuant to 32 V.S.A. chapter 7, subchapter 5, except that interest earned on the Fund and any remaining balance shall be retained in the Fund. The Agency shall maintain records indicating the amount of money in the Fund at any time.
  4. All monies received by or generated to the Fund shall be used only as allowed by appropriation of the General Assembly for the administration and delivery of health care covered through State health care assistance programs administered by the Agency under the Global Commitment to Health Medicaid Section 1115 waiver, immunizations under 18 V.S.A. § 1130 , and the development and implementation of the Blueprint for Health under 18 V.S.A. § 702 .

    Added 2005, No. 93 (Adj. Sess.), § 16a, eff. July 1, 2006; amended 2005, No. 191 (Adj. Sess.), § 41; 2007, No. 65 , § 387, eff. June 4, 2007; 2011, No. 45 , § 36o; 2011, No. 75 (Adj. Sess.), § 110; 2013, No. 50 , § E.307.4; 2019, No. 6 , § 65, eff. April 22, 2019; 2021, No. 20 , § 298.

History

Reference in text. Section 1115 of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1315.

Amendments--2021 Subsec. (d): Substituted "Global Commitment to Health" for "Global Commitment for Health".

Amendments--2019 Subsec. (a): Deleted "and a source of financing for the Vermont Health Benefit Exchange established in chapter 18, subchapter 1 of this title" at the end.

Subdivs. (b)(1)-(4), (7): Repealed.

Subdiv. (b)(5): Added "and" following the semicolon.

Subdiv. (b)(6): Added "recoveries" following "taxes" and "agreement" following "rule"; substituted a period for "; and".

Subsec. (d): Deleted "the Vermont Health Benefit Exchange established in chapter 18, subchapter 1 of this title," following "1115 waiver".

Amendments--2013 Subsec. (a): Substituted "State Treasury" for "treasury" after "established in the"; inserted "for" after "to be a source of financing"; substituted "and a source of financing for the Vermont Health Benefit Exchange established in chapter 18, subchapter 1 of this title" for "and for the Catamount Health assistance program under subchapter 3A of chapter 19 of this title".

Subsec. (d): Substituted "the Vermont Health Benefit Exchange established in chapter 18, subchapter 1 of this title" for "the Catamount Health assistance program under subchapter 3A of chapter 19 of this title, employer-sponsored insurance premium assistance under section 1974 of this title".

Amendments--2011 (Adj. Sess.) Section amended generally.

Amendments--2011. Subdiv. (b)(1): Substituted "85.5" for "84.5" preceding "percent".

Amendments--2007. Subdiv. (b)(1): Substituted "84.5" for "82.5" preceding "percent".

Amendments--2005 (Adj. Sess.). Subdiv. (b)(1): Substituted "all revenue from the tobacco products tax and 82.5 percent of the revenue from the cigarette tax levied pursuant to" for "revenue from the cigarette and tobacco products tax established in".

Subsec. (d): Substituted "Global Commitment for Health Medicaid Section 1115" for "global commitment".

Retroactive effective date--2019 amendment 2019, No. 6 , § 105(a), provides that notwithstanding 1 V.S.A. § 214, the amendment to this section by that act shall take effect on passage and apply retroactively to July 1, 2018.

§ 1901e. Global Commitment Fund.

  1. The Global Commitment Fund is created in the Treasury as a special fund. The Fund shall consist of the revenues received by the Treasurer as payment of the actuarially certified premium from the Agency of Human Services to the managed care organization within the Department of Vermont Health Access for the purpose of providing services under the Global Commitment to Health waiver approved by the Centers for Medicare and Medicaid Services under Section 1115 of the Social Security Act.
  2. The monies in the Fund shall be disbursed as allowed by appropriation of the General Assembly, and shall be disbursed by the Treasurer on warrants issued by the Commissioner of Finance and Management, when authorized by the Commissioner of Vermont Health Access and approved by the Commissioner of Finance and Management consistent with the interdepartmental agreements between the managed care organization within the Department of Vermont Health Access and departments delivering eligible services under the waiver. The Department of Vermont Health Access shall not modify an appropriation through an interdepartmental agreement or any other mechanism. A department or agency authorized to spend monies from this Fund under an interdepartmental agreement may spend monies appropriated as a base Medicaid expense for an allowable managed care organization investment under the terms and conditions of the Global Commitment to Health Medicaid Section 1115 waiver only after receiving approval from the Agency of Human Services.
  3. Annually, on or before October 1, the Agency shall provide a detailed report to the Joint Fiscal Committee that describes the managed care organization's investments under the terms and conditions of the Global Commitment to Health Medicaid Section 1115 waiver, including the amount of the investment and the agency or departments authorized to make the investment.

    Added 2005, No. 93 (Adj. Sess.), § 16c, eff. Oct. 1, 2005; amended 2005, No. 215 (Adj. Sess.), § 307, eff. May 31, 2006; 2009, No. 156 (Adj. Sess.), § I.46; 2013, No. 131 (Adj. Sess.), § 40, eff. May 20, 2014; 2015, No. 172 (Adj. Sess.), § E.306.5; 2021, No. 20 , § 299.

History

Reference in text. Section 1115 of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1315.

Amendments--2021 Subsec. (a): Substituted "Global Commitment to Health" for "Global Commitment for Health" in the second sentence.

Subsec. (b): Substituted "shall" for "may" preceding "not modify” in the second sentence and "Global Commitment to Health" for "Global Commitment for Health" in the last sentence.

Subsec. (c): Substituted "that" for "which" preceding "describes” and "Global Commitment to Health" for "Global Commitment for Health".

Amendments--2015 (Adj. Sess.). Subsec. (c): Substituted "Annually, on or before October 1" for "At the close of the fiscal year".

Amendments--2013 (Adj. Sess.). Subsecs. (b) and (c): Substituted "the terms and conditions" for "Term and Condition 57".

Amendments--2009 (Adj. Sess.) Substituted "department of Vermont health" for "office of Vermont health" wherever it appeared throughout the section, "the commissioner of Vermont health" for "the director of the office of Vermont health" in subsec. (b), and "Term and Condition 57" for "Term and Condition 40" in subsecs. (b) and (c), and "or departments" for "department, or office" in subsec. (c).

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "under the Global Commitment for Health waiver" for "under the global commitment to health care waiver" in the last sentence.

Subsec. (b): Added the last two sentences.

Subsec. (c): Added.

§ 1901f. Medicaid program enrollment and expenditure reports.

By March 1, June 1, September 1, and December 1 of each year, the Commissioner of Vermont Health Access or designee shall submit to the General Assembly a quarterly report on enrollment and total expenditures by Medicaid eligibility group for all programs paid for by the Department of Vermont Health Access during the preceding calendar quarter and for the fiscal year to date. Total expenditures for Medicaid-related programs paid for by other departments within the Agency of Human Services shall be included in this report by Medicaid eligibility group to the extent such information is available.

Added 2011, No. 75 (Adj. Sess.), § 111, eff. March 7, 2012; amended 2015, No. 58 , § E.307.2.

History

Amendments--2015. Substituted "March 1, June 1, September 1, and December 1" for "January 30, April 30, July 30, and October 30" at the beginning of the first sentence.

§ 1901g. Medicaid coverage for home telemonitoring services.

  1. The Agency of Human Services shall provide Medicaid coverage for home telemonitoring services performed by home health agencies or other qualified providers as defined by the Agency of Human Services for Medicaid beneficiaries who have serious or chronic medical conditions that can result in frequent or recurrent hospitalizations and emergency room admissions. Beginning on July 1, 2014, the Agency shall provide coverage for home telemonitoring for one or more conditions or risk factors for which it determines, using reliable data, that home telemonitoring services are appropriate and that coverage will be budget-neutral. The Agency may expand coverage to include additional conditions or risk factors identified using evidence-based best practices if the expanded coverage will remain budget-neutral or as funds become available.
  2. A home health agency or other qualified provider shall ensure that clinical information gathered by the home health agency or other qualified provider while providing home telemonitoring services is shared with the patient's treating health care professionals. The Agency of Human Services may impose other reasonable requirements on the use of home telemonitoring services.
  3. As used in this section:
    1. "Home health agency" means an entity that has received a certificate of need from the State to provide home health services and is certified to provide services pursuant to 42 U.S.C. § 1395x (o).
    2. "Home telemonitoring service" means a health service that requires scheduled remote monitoring of data related to a patient's health, in conjunction with a home health plan of care, and access to the data by a home health agency or other qualified provider as defined by the Agency of Human Services.

      Added 2013, No. 153 (Adj. Sess.), § 1.

§§ 1901h Repealed. 2017, No. 3, § 75a, eff. March 2, 2017.

History

Former § 1901h. Former § 1901h, relating to prospective payment; home health services, was derived from 2015, No. 58 , § E.306.3 and amended by 2015, No. 172 (Adj. Sess.), § E.306.6.

§ 1901i. Repealed. 2017, No. 64, § 3, effective October 1, 2017.

History

Former § 1901i. Former § 1901i, relating to Medicaid coverage for primary care telemedicine, was derived from 2015, No. 54 , § 45.

§ 1901j. Medicaid reimbursement for long-acting reversible contraceptives.

  1. As used in this section, "health care provider" has the same meaning as in 18 V.S.A. § 9402 .
  2. The Department of Vermont Health Access shall reimburse health care providers for the full cost of a device providing long-acting reversible contraception when the device is inserted during a Medicaid beneficiary's postpartum hospital stay.

    Added 2017, No. 138 (Adj. Sess.), § 1.

§ 1902. Qualification for medical assistance.

  1. In determining whether a person is medically indigent, the Secretary of Human Services shall prescribe and use an income standard and requirements for eligibility that will permit the receipt of federal matching funds under Title XIX of the Social Security Act.
  2. Workers with disabilities whose income is less than 250 percent of the federal poverty level shall be eligible for Medicaid. The income also must not exceed the Medicaid protected income level for one or the Supplemental Security Income (SSI) payment level for two, whichever is higher, after disregarding the earnings of the working individual with disabilities; Social Security disability insurance benefits, including Social Security retirement benefits converted automatically from Social Security Disability Insurance (SSDI), if applicable; any veteran's disability benefits; and, if the working individual with disabilities is married, all income of the spouse. Earnings of the working individual with disabilities shall be documented by evidence of Federal Insurance Contributions Act tax payments, Self-Employment Contributions Act tax payments, or a written business plan approved and supported by a third-party investor or funding source. The resource limit for this program shall be $10,000.00 for an individual and $15,000.00 for a couple at the time of enrollment in the program. Assets attributable to earnings made after enrollment in the program shall be disregarded.

    Added 1967, No. 147 , § 6; amended 1987, No. 89 , § 314b; 2005, No. 56 , § 4, eff. June 13, 2005; 2015, No. 157 (Adj. Sess.), § G.1, eff. June 2, 2016; 2017, No. 210 (Adj. Sess.), § 1, eff. June 1, 2018.

History

Reference in text. The Supplemental Security Income (SSI) program, referred to in subsec. (b), is codified as 42 U.S.C. § 1381 et seq.

The Federal Insurance Contributions Act, referred to in subsec. (b), is codified as 26 U.S.C. § 3101 et seq.

The Self-Employment Contributions Act, referred to in subsec. (b), is codified as 26 U.S.C. § 1401 et seq.

Title XIX of the Social Security Act, referred to in subsec. (b), is codified as 42 U.S.C. § 1396 et seq.

Amendments--2017 (Adj. Sess.). Subsec. (a): Substituted "that" for "which" following "for eligibility".

Subsec. (b): Amended generally.

Amendments--2015 (Adj. Sess.). Subsec. (b): Substituted "$10,000.00" for "$5,000.00" and "$15,000.00" for "$6,000.00" in the fourth sentence.

Amendments--2005 Designated the existing provisions of the section as subsec. (a) and in that subsection, substituted "secretary of the agency of human services" for "commissioner", and added subsec. (b).

Amendments--1987. Substituted "an" for "the minimum" preceding "income standard" and "and requirements" for "or requirement" preceding "for eligibility" thereafter.

Prior law. 33 V.S.A. § 2902.

§ 1902a. Confidentiality of Medicaid applications and records; disclosure to authorized representative.

  1. All applications submitted and records created under the authority of this chapter concerning any applicant for or recipient of Medicaid are confidential and shall be made available only to persons authorized by the Agency, the State, or the United States for purposes directly related to plan administration. In addition, the Agency shall maintain a process to allow a Medicaid applicant or recipient or his or her authorized representative to have access to confidential information when necessary for an eligibility determination and the appeals process.
  2. Applications and records considered confidential are those that disclose one or more of the following:
    1. the name and address of the applicant or recipient;
    2. medical services provided;
    3. the applicant's or recipient's social and economic circumstances;
    4. the Agency's evaluation of personal information;
    5. medical data, including diagnosis and past history of disease or disability; or
    6. any information received for the purpose of verifying income eligibility and determining the amount of medical assistance payments.
  3. A person found to have violated this section may be assessed an administrative penalty of not more than $1,000.00 for a first violation and not more than $2,000.00 for any subsequent violation.
  4. As used in this section:
    1. "Authorized representative" means any person designated by a Medicaid applicant or recipient to review confidential information about the Medicaid applicant or recipient pertaining to the eligibility determination and the appeals process.
    2. "Purposes directly related to plan administration" include establishing eligibility, determining the amount of medical assistance, providing services to recipients, conducting or assisting with an investigation or prosecution, and civil or criminal proceedings, or audits, related to the administration of the State Medicaid program.

      Added 2015, No. 172 (Adj. Sess.), § E.306.9; amended 2019, No. 15 , § 2, eff. May 6, 2019.

History

Amendments--2019 Subsec. (b): Added "one or more of the following" at the end of the introductory paragraph, and substituted "or" for "and" at the end of subdiv. (5).

Subdiv. (d)(2): Substituted "include" for "means" preceding "establishing eligibility".

§ 1903. Contract authorized.

  1. The Commissioner of Vermont Health Access may contract with a private organization to operate, under his or her control and supervision, parts of the medical assistance program.
  2. The contract shall provide that either party may cancel it upon reasonable notice to the other party.
  3. In furtherance of the purposes of the contract, the Commissioner of Vermont Health Access may requisition funds for the purposes of this subchapter, with the approval of the Governor, and the Commissioner of Finance and Management shall issue a warrant in favor of the contracting party to permit the contracting party to make payments to vendors under the contract. The Commissioner of Vermont Health Access shall quarterly, and at other times as the Commissioner of Finance and Management requires, render an account in a form as the Commissioner of Finance and Management prescribes of the expenditures of monies so advanced.

    Added 1967, No. 147 , § 6; amended 1983, No. 195 (Adj. Sess.), § 5; 2005, No. 174 (Adj. Sess.), § 96; 2009, No. 156 (Adj. Sess.), § I.47.

History

Revision note. Reference to "chapter" in the first sentence of subsec. (c) changed to "subchapter" in light of the designation of sections 1901-1904 as subchapter 1 and the addition of subchapter 2, consisting of sections 1951-1958.

References to "finance director" in subsec. (c) changed to "commissioner of finance" to conform to new title and reorganization of State government pursuant to 1971, No. 92 . See § 2201 et seq. of Title 3.

Amendments--2009 (Adj. Sess.) Substituted "commissioner of Vermont health" for "director of the office of Vermont health" in subsec. (a), and "commissioner of Vermont health access" for "director" in two places in subsec. (c).

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "director of the office of Vermont health access" for "commissioner" and inserted "or her" following "his".

Subsec. (c): Substituted "director" for "commissioner" in two places, "a" for "his" preceding "warrant", and "a" for "such" preceding "form".

Amendments--1983 (Adj. Sess.). Subsec. (c): Inserted "and information support" following "commissioner of finance" wherever it appeared.

Prior law. 33 V.S.A. § 2903.

§ 1903a. Care management program.

  1. The Commissioner of Vermont Health Access shall coordinate with the Director of the Blueprint for Health to provide chronic care management through the Blueprint and, as appropriate, create an additional level of care coordination for individuals with one or more chronic conditions who are enrolled in Medicaid or Dr. Dynasaur. The program shall not include individuals who are in an institute for mental disease as defined in 42 C.F.R. § 435.1009.
  2. The Commissioner shall include individuals with a broad range of chronic conditions in the Blueprint for Health and the care management program.

    Added 2005, No. 191 (Adj. Sess.), § 6; amended 2007, No. 70 , §§ 22, 23; 2009, No. 146 (Adj. Sess.), § C33; 2013, No. 79 , § 24, eff. Jan. 1, 2014.

History

Amendments--2013. Subsec. (a): Deleted ", the Vermont health access plan (VHAP)," following "Medicaid".

Amendments--2009 (Adj. Sess.) Deleted "Chronic" preceding "Care Management" in the section heading, rewrote subsec. (a), substituted "commissioner" for "secretary", inserted "individuals with" preceding "a broad", and substituted "Blueprint for Health and the" for "chronic" preceding "care management" in subsec. (b), and deleted subsecs. (c)-(f).

Amendments--2007. Subdiv. (c)(7): Added "all or a portion" following "would put".

Subsec. (f): Added.

Prevention and chronic care management; state employees. 2005, No. 191 (Adj. Sess.), § 8 provides: "The commissioner of human resources shall include in any request for proposals for the administration of the health benefit plans for state employees a request for a description of any chronic care management program provided by the entity and how the program aligns with the Vermont blueprint for health strategic plan developed under section 702 of Title 18. The commissioner shall also work with the secretary of administration or designee, and the Vermont state employees' association on how and when to align the state employees' health benefit plan with the goals and statewide standards developed by the Vermont blueprint for health in section 702 of Title 18."

§ 1904. Repealed. 2013, No. 131 (Adj. Sess.), § 41, eff. May 20, 2014.

History

Former § 1904. Former § 1904, relating to definitions, was derived from 1973, No. 152 (Adj. Sess.), § 32 and amended by 1995, No. 152 (Adj. Sess.), § 1; 1997, No. 142 (Adj. Sess.), § 2; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 97; 2007, No. 65 , § 110a; 2007, No. 172 (Adj. Sess.), § 11 and 2009, No. 156 (Adj. Sess.), § I.49. For present provisions see § 1900 of this title.

§ 1905. Disproportionate share program.

The Secretary of Human Services shall adopt a disproportionate share program for hospitals consistent with the requirements of Title XIX of the Social Security Act.

Added 1991, No. 253 (Adj. Sess.), § 10.

History

Reference in text. Title XIX of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 1396 et seq.

§ 1905a. Medicaid reimbursements to certain outpatient providers.

  1. To the extent permitted under federal law, the Department of Vermont Health Access shall not use provider-based billing for outpatient medical services provided at an off-campus outpatient department of a hospital as a result of the provider's transfer to or acquisition by the hospital.
  2. As used in this section, "off-campus" means a facility located more than 250 yards from the main hospital campus.

    Added 2015, No. 143 (Adj. Sess.), § 3.

§ 1906. Recoupment of amounts spent on child medical care.

  1. The State Medicaid agency, any State agency administering health benefits or a health benefit plan for which Medicaid is a source of funding, or the Office of Child Support may recoup the amounts paid by the State for child medical expenses from any person who is required by court or administrative order to provide coverage of the cost of health services to a child eligible for medical assistance under Medicaid; and who either:
    1. Has received payment from a third party for the costs of such services, but has not used the payments to reimburse either the other parent or guardian of the child or the provider of the services. Claims for current and past due child support shall take priority over these claims.
    2. Has failed to give any notice required by 15 V.S.A. § 663(d) .
  2. In addition to any other remedies available at law, all remedies available for the collection and enforcement of child support under 15 V.S.A. chapter 11 shall apply to medical support recoupment under this section.

    Added 1993, No. 231 (Adj. Sess.), § 4; amended 2015, No. 23 , § 56.

History

Amendments--2015. Revised subsection and subdivision designations, added "who either:" at the end of present subsec. (a), and deleted "; or" at the end of former subdiv. (2)(A).

§ 1906a. Recovery against estate; homestead exemptions.

No recovery of medical expenses shall be made under this subchapter against a homestead, provided that the homestead would pass to one or more lineal heirs or siblings of the decedent who either have income below 300 percent of the federal poverty level or who have contributed significantly, monetarily or otherwise, to the decedent so as to allow the decedent to delay or avoid nursing home placement. If a maximum homestead value exemption is allowed by federal law, then any recoveries due to the U.S. Department of Health and Human Services on homesteads valued between such maximum and $125,000.00 shall be paid through State general funds provided the caregiving or poverty standards set forth in this section are also met and the probate estate was opened after June 30, 2000.

Added 1999, No. 62 , § 125; amended 1999, No. 152 (Adj. Sess.), § 117a, eff. May 29, 2000; 2013, No. 131 (Adj. Sess.), § 42, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Deleted the second, third, and fourth sentences, and substituted "allowed by federal law" for "approved by HCFA" following "exemption is", "to the U.S. Department of Health and Human Services" for "HCFA" following "recoveries due", and "in this section" for "above" following "standards set forth".

Amendments--1999 (Adj. Sess.). Deleted "of modest value" following "a homestead" in the first sentence; deleted the former second sentence; and added the present fourth and fifth sentences.

§ 1907. Subrogation.

To the extent that payment for covered expenses has been made under the Medicaid program or through any State agency administering health benefits or a health benefit plan for which Medicaid is a source of funding for health care items or services furnished to an individual, in any case where a third party has a legal liability to make payments, the State is considered to have acquired the rights of the individual to payment by any other party for those health care items or services. An insurer shall accept the Agency's right to recovery and the assignment to the Agency of any right of a person to payment from the third party for medical services for which the Agency has made payment under this chapter.

Added 1993, No. 231 (Adj. Sess.), § 5; amended 2007, No. 65 , § 110b; 2013, No. 131 (Adj. Sess.), § 43, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Deleted "State" preceding "Medicaid program" in the first sentence.

Amendments--2007. Added the second sentence.

§ 1908. Medicaid; payer of last resort; release of information.

  1. Any clause in an insurance contract, plan, or agreement that limits or excludes payments to a recipient is void.
  2. Medicaid shall be the payer of last resort to any insurer that contracts to pay health care costs for a recipient.
  3. Every applicant for or recipient of Medicaid under this subchapter is deemed to have authorized all third parties to release to the Agency all information needed by the Agency to secure or enforce its rights under this subchapter. The Agency shall inform an applicant or recipient of the provisions of this subsection at the time of application for Medicaid benefits.
  4. On and after July 1, 2016, an insurer shall accept the Agency's right of recovery and the assignment of rights and shall not charge the Agency or any of its authorized agents fees for the processing of claims or eligibility requests. Data files requested by or provided to the Agency shall provide the Agency with eligibility and coverage information that will enable the Agency to determine the existence of third-party coverage for Medicaid recipients, the period during which Medicaid recipients may have been covered by the insurer, and the nature of the coverage provided, including information such as the name, address, and identifying number of the plan.
    1. Upon request, to the extent permitted under the federal Health Insurance Portability and Accountability Act and other federal privacy laws and notwithstanding any State privacy law to the contrary, an insurer shall transmit to the Agency, in a manner prescribed by the Centers for Medicare and Medicaid Services or as agreed between the insurer and the Agency, an electronic file of all of the insurer's identified subscribers or policyholders and their dependents. (e) (1)  Upon request, to the extent permitted under the federal Health Insurance Portability and Accountability Act and other federal privacy laws and notwithstanding any State privacy law to the contrary, an insurer shall transmit to the Agency, in a manner prescribed by the Centers for Medicare and Medicaid Services or as agreed between the insurer and the Agency, an electronic file of all of the insurer's identified subscribers or policyholders and their dependents.
    2. An insurer shall comply with a request under the provisions of this subsection not later than 60 days following the date of the Agency's request and shall be required to provide the Agency with only the information required by this section.
    3. The Agency shall request the data from an insurer once each month. The Agency shall not request subscriber or policyholder enrollment data that precede the date of the request by more than three years.
    4. The Agency shall use the data collected pursuant to this section solely for the purposes of determining whether a Medicaid recipient also has or has had coverage with the insurer providing the data.
    5. The Agency shall ensure that all data collected and maintained pursuant to this section are collected and stored securely and that such data are stored no longer than necessary to determine whether Medicaid benefits may be coordinated with the insurer, or as otherwise required by law. Insurers shall not be liable for any security incidents caused by the Agency in the collection or maintenance of the data.
    1. Each insurer shall submit a file containing information required to coordinate benefits, such as the name, address, group policy number, coverage type, Social Security number, and date of birth of each subscriber or policyholder and each dependent covered by the insurer, including the policy effective and termination dates, claims submission address, and employer's mailing address. (f) (1)  Each insurer shall submit a file containing information required to coordinate benefits, such as the name, address, group policy number, coverage type, Social Security number, and date of birth of each subscriber or policyholder and each dependent covered by the insurer, including the policy effective and termination dates, claims submission address, and employer's mailing address.
    2. The Agency shall adopt rules governing the exchange of information pursuant to this section. The rules shall be consistent with laws relating to the confidentiality or privacy of personal information and medical records, including the Health Insurance Portability and Accountability Act.
  5. From funds recovered pursuant to this subchapter, the federal government shall be paid a portion equal to the proportionate share originally provided by the federal government to pay for medical assistance to a recipient or minor.

    Added 1995, No. 152 (Adj. Sess.), § 2; amended 2007, No. 65 , § 110c; 2015, No. 172 (Adj. Sess.), § E.306.7; 2021, No. 20 , § 300.

History

Amendments--2021 Subdiv. (e)(2): Substituted "not" for "no" preceding "later than 60".

Amendments--2015 (Adj. Sess.). Rewrote subsec. (d), added new subsecs. (e) and (f), and redesignated former subsec. (e) as subsec. (g).

Amendments--2007. Added subsec. (d) and redesignated former subsec. (d) as present subsec. (e).

§ 1908a. Vermont Partnership for Long-Term Care.

  1. The Secretary of Human Services or his or her designee, in consultation with the Commissioner of Financial Regulation, shall establish by rule the Vermont Partnership for Long-Term Care Program.
  2. The Program shall provide Medicaid extended coverage to an individual receiving long-term care services if there is federal participation for such coverage, and if the individual:
    1. is or was covered by a long-term care insurance policy under 8 V.S.A. chapter 154 that provides coverage for three years of long-term care services in an amount that, in combination with other resources available to the individual, is sufficient to permit the individual to pay for the individual's own care while the policy remains in force and that is precertified by the Department of Financial Regulation pursuant to subsection (c) of this section;
    2. meets any other requirements for approval of participation under the Program; and
    3. has exhausted coverage and benefits under the long-term care insurance policy as required by the Program.
    1. The Department of Financial Regulation shall adopt rules for precertification of long-term care partnership policies and for the information needed to evaluate the Program. The Department of Financial Regulation shall consider whether all precertified policies should require: (c) (1)  The Department of Financial Regulation shall adopt rules for precertification of long-term care partnership policies and for the information needed to evaluate the Program. The Department of Financial Regulation shall consider whether all precertified policies should require:
      1. protection against loss of benefits due to inflation;
      2. coverage of individual assessment and case management;
      3. a minimum level of covered benefits, including coverage of long-term care services as defined in subsection (g) of this section;
      4. the option of a nonforfeiture benefit;
      5. a level premium;
      6. information to the purchaser about available consumer information and public education provided by the Department of Financial Regulation and the Department of Vermont Health Access; and
      7. Program information, using the uniform data set developed by other states with long-term care partnership programs, and reports necessary to document the extent of the Medicaid resource protection offered and to evaluate the partnership for long-term care.
    2. The Department of Financial Regulation shall not require all long-term care partnership insurance policies to be federally tax-qualified long-term care insurance policies.
  3. The Secretary or his or her designee may enter into reciprocal agreements with other states to extend the benefits of the Vermont Partnership for Long-Term Care Program to Vermont residents who had purchased qualified long-term care policies in other states.
  4. The Agency and the Department of Financial Regulation shall make available consumer information regarding the Long-Term Care Partnership Program. The Secretary and Commissioner may allocate responsibilities for providing consumer information between the Agency and Department.
  5. As used in this section:
    1. "Long-term care services" includes care, treatment, maintenance, and services:
      1. provided in a nursing facility;
      2. provided in a residential care home or assisted living residence;
      3. provided by a home care services agency, certified home health agency, or long-term home health care program;
      4. provided by an adult day care program;
      5. provided by a personal care provider licensed or regulated by any other State or local agency; and
      6. such other long-term care services as determined by the Secretary or his or her designee for which medical assistance is otherwise available under the Medicaid program.
    2. "Medicaid extended coverage" means eligibility for medical assistance without regard to the resource requirements of the Medicaid program and without regard to the recovery of medical assistance from the estates of individuals and the imposition of liens pursuant to the requirements of the Medicaid program; provided, however, that nothing in this section shall prevent the imposition of a lien or recovery against property of an individual on account of medical assistance incorrectly paid. Nothing in this section shall modify what medical assistance is covered by Medicaid.

      Added 2003, No. 124 (Adj. Sess.), § 4; amended 2005, No. 174 (Adj. Sess.), § 98; 2009, No. 156 (Adj. Sess.), § I.50.

History

2012. Substituted "commissioner of financial regulation" for "commissioner of banking, insurance, securities, and health care administration" and "department of financial regulation" for "department of banking, insurance, securities, and health care administration" throughout the section in accordance with 2011, No. 78 (Adj. Sess.), § 2.

Amendments--2009 (Adj. Sess.) Subdiv. (c)(1)(F): Substituted "department of Vermont health" for "office of Vermont health".

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "secretary of human services or his or her designee" for "commissioner".

Subdiv. (c)(1)(F): Substituted "office of Vermont" for "department of prevention, assistance, transition, and".

Subsec. (d): Substituted "secretary or his or her designee may" for "commissioner is authorized to".

Subsec. (e): Substituted "agency" for "departments of prevention, assistance, transition and health access"; inserted "the department of" preceding "banking"; substituted "secretary and commissioner" for "commissioners" and "agency and department" for "departments".

Subdiv. (f)(1)(F): Substituted "secretary or his or her designee" for "commissioner".

§ 1909. Direct payments to Agency; discharge of insurer's obligation.

  1. When a recipient who is covered by the recipient's or a legally liable representative's insurer receives medical benefits under this subchapter, payment for covered services or notice of denial shall be issued directly to the provider.
  2. A provider shall indicate on any claim form submitted to an insurer for covered services whether or not the person receiving treatment is a recipient.
    1. An insurer that receives notice that the Agency has made payments to the provider shall pay benefits or send notice of denial directly to the Agency. Receipt of an Agency claim form by an insurer constitutes notice that payment of the claim was made by the Agency to the provider and that form supersedes any contract requirements of the insurer relating to the form of submission. (c) (1)  An insurer that receives notice that the Agency has made payments to the provider shall pay benefits or send notice of denial directly to the Agency. Receipt of an Agency claim form by an insurer constitutes notice that payment of the claim was made by the Agency to the provider and that form supersedes any contract requirements of the insurer relating to the form of submission.
    2. An insurer shall respond to any request made by the Agency regarding a claim for payment for any health care item or service that is submitted not later than three years after the date of the provision of such health care item or service.
    3. An insurer shall not deny a claim submitted by the Agency solely on the basis of the date of submission of the claim, the type or format of the claim form, or a failure to present proper documentation at the point-of-sale that is the basis of the claim, if the claim is submitted by the Agency within the three-year period beginning on the date on which the item or service was furnished and any action by the Agency to enforce its rights with respect to a claim is commenced within six years of the Agency's submission of the claim.
  3. An insurer that has been notified of a claim by the Agency under this section and proceeds to pay the claim to a person other than the Agency is not discharged from payment of the Agency's claim.
  4. Payment to the Agency by an insurer under this section discharges the insurer's obligation for further payment on the claim to the extent of the amount paid.

    Added 1995, No. 152 (Adj. Sess.), § 3; amended 2007, No. 65 , § 110d.

History

Amendments--2007. Subsec. (c): Added the subdiv. (1) designation and added subdivs. (2) and (3).

§ 1910. Liability of third parties; liens.

  1. The Agency shall have a lien against a third party, to the extent of the amount paid by the Agency for medical expenses, on any recovery for that claim, whether by judgment, compromise, mediation, or settlement, whenever:
    1. the Agency pays medical expenses for or on behalf of a recipient who has been injured or has an illness or disease as a result of negligence; and
    2. the recipient asserts a claim against a third party for damages resulting from the injury, illness, or disease.
    1. The Agency shall have a lien against the insurer, to the extent of the amount paid by the Agency for past medical expenses, on any recovery from the insurer, whenever the Agency pays medical expenses or renders medical services on behalf of a recipient who has been injured or has an injury, illness, or disease and the recipient asserts a claim against an insurer as a result of the injury, illness, or disease. (b) (1)  The Agency shall have a lien against the insurer, to the extent of the amount paid by the Agency for past medical expenses, on any recovery from the insurer, whenever the Agency pays medical expenses or renders medical services on behalf of a recipient who has been injured or has an injury, illness, or disease and the recipient asserts a claim against an insurer as a result of the injury, illness, or disease.
    2. Effective July 1, 2013, the recipient's insurer or alleged liable party's insurer, if any, shall take reasonable steps to discover the existence of the Agency's medical assistance. Payment to the recipient instead of the Agency does not discharge the insurer from payment of the Agency's claim.
  2. A recipient who has applied for or has received medical assistance under this subchapter and the recipient's attorney, if any, shall cooperate with the Agency by informing the Agency in writing within a reasonable period of time after learning that the Agency has paid medical expenses for the recipient. The recipient's attorney shall take reasonable steps to discover the existence of the Agency's medical assistance.
  3. Any written notice provided to the Agency pursuant to subsection (c) of this section shall disclose the identity and address of any third party and his, her, or its insurer against whom the recipient has a right of recovery, and the name of the court in which the legal recovery action, if any, was brought.
    1. A recipient or an attorney on behalf of a recipient shall allocate the full amount paid by the Agency for past medical expenses to or for any recovery obtained by whatever means. (e) (1)  A recipient or an attorney on behalf of a recipient shall allocate the full amount paid by the Agency for past medical expenses to or for any recovery obtained by whatever means.
    2. A recipient or an attorney on behalf of a recipient shall pay to the Agency, within 30 days after receipt of settlement proceeds or recovery of a judgment, the full amount of the medical expenses owed to the Agency. If full payment of the required sum is not made to the Agency within the 30-day period, the recipient or his or her attorney shall place a sum equal to the full amount of the medical expenses paid in an escrow account pending an agreement, mediation, or judicial determination of the Agency's right to the amount.
    3. The Agency's lien for its medical expenditures relating to the recipient's injury, illness, or disease shall be given priority over all other claims on the total amount recovered.
    4. In making the determination whether to pursue, reduce, or compromise a claim, the Agency may in its discretion consider the factual, evidentiary, and legal issues of liability between the recipient and any liable third party and the total amount available to satisfy the recipient's claim. Where the amount of reimbursement the Agency can reasonably expect to recover exceeds the costs of such recovery, the Agency shall not be required to seek reimbursement from or may reduce or compromise a claim against any liable third party, the insurer, or both. Whether or not the Agency exercises its discretion shall not be subject to any claim of abuse of discretion.
  4. A lien created under this section shall not be effective unless:
    1. notice of the lien is filed in the office of the clerk of the town in which the Agency is located and contains the name and address of the recipient, acknowledgment of the recipient's application for or receipt of medical assistance, and the name of the person alleged to be liable; and
    2. the Agency mails a notice of the lien with a statement of the date it was filed to the person alleged to be liable.
  5. The Agency shall send a copy of the notice of the lien required by subsection (f) of this section to the following persons, if the appropriate names and addresses can be determined:
    1. the recipient for whom the Department has paid medical expenses;
    2. any insurance carrier that may be ultimately liable; and
    3. any attorney for the recipient.
  6. Within 45 days after the filing of the notice of the lien, the Agency shall send an itemized statement of the medical expenses paid by the Agency for which the Agency seeks to perfect a lien to the persons listed in subsection (g) of this section. The notice provisions contained in this subsection may be waived by agreement of the parties.
  7. The Agency may, on behalf of a recipient, file a civil action in the Superior Court in Washington County against a liable third party, the third party's insurer, or both, to recover up to the full amount of medical expenses it has incurred on behalf of the recipient. The Agency may initiate this action only if:
    1. the recipient has not initiated legal proceedings against the third party within one year after the occurrence of the injury, illness, or disease resulting, at least in part, from the actions or omissions, including negligence, of the third party; and
    2. the time remaining under the statute of limitations for the action is six months or less.
  8. The Attorney General shall be responsible for initiating actions on behalf of the Agency.
  9. Whenever the Agency recovers under the lien and that recovery is the result of an action initiated by a recipient, the attorney for the recipient may withhold the Agency's pro rata share of reasonably necessary attorney's fees, costs, and expenses incurred in asserting the claim. If the Agency waives its right to reimbursement, it shall not be liable for any fees, costs, and expenses incurred by the recipient or attorney.
  10. In cases in which the court has determined the amount of recovery allocated for past medical expenses, the Agency's lien shall be limited to that amount.

    Added 1995, No. 152 (Adj. Sess.), § 4; amended 2007, No. 192 (Adj. Sess.), § 6.014; 2011, No. 162 (Adj. Sess.), § E.307.3; 2013, No. 96 (Adj. Sess.), § 206.

History

Amendments--2013 (Adj. Sess.). Subdivs. (a)(1) and (b)(1): Deleted "suffered" following "injured or has".

Amendments--2007 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Analysis

1. Construction.

Vermont statute regarding Medicaid liens allows the State to assert its lien only to the extent of the amount paid by the Agency. By its plain language, the statute does not allow the State to assert a lien against any recovery for money not paid by Medicaid. Doe v. Vt. Office of Health Access, 191 Vt. 517, 54 A.3d 474 (2012).

Amendment to the statute regarding liens in Medicaid cases to provide that a recipient's attorney "may withhold the agency's pro rata share of reasonably necessary attorneys' fees, costs, and expenses incurred in asserting the claim" was a change and not a clarification. The statute formerly in place, providing that the attorney for the recipient "may negotiate an attorney fee with the agency," indicated that where the recipient and the State independently made an allocation to recover medical expenses, the parties could discuss deducting attorney's fees from the State's lien; the statute did not, however, put limits on a court's authority to reduce the State's lien by subtracting attorney's fees where the court is making an allocation. Doe v. Vt. Office of Health Access, 191 Vt. 517, 54 A.3d 474 (2012).

2. Attorney's fees.

Once a Medicaid recipient initiated negotiations pursuant to the statute regarding Medicaid liens, the State was required to negotiate in good faith and in accordance with its general practice of reducing its lien claims by a proportionate share of attorney's fees. The trial court failed to take into account the State's practice, and therefore abused its discretion in denying the recipient's request to reduce the State's judgment by the amount of reasonable attorney's fees. Doe v. Vt. Office of Health Access, 191 Vt. 517, 54 A.3d 474 (2012).

3. Liens.

In a suit involving a state Medicaid lien, discounting future damages to present value was unwarranted. The differential between the parties' figures was colossal, and the State simply did not prove that its figure was more fair or was accurate. Doe v. Vt. Office of Health Access, 191 Vt. 517, 54 A.3d 474 (2012).

By its plain language, Vermont's reimbursement statute, before its amendment in 2008, does not allow the State to assert a lien against any recovery for money not paid by Medicaid. Accordingly, the trial court erred in allowing the State to assert its lien against all medical expenses beyond those which were paid by Medicaid. Doe v. Vt. Office of Health Access, 191 Vt. 517, 54 A.3d 474 (2012).

Medicaid reimbursement statute in place before 2008, providing that the attorney for the recipient may negotiate an attorney fee with the Agency, indicated that where the Medicaid recipient and the State independently made an allocation to recover medical expenses, the parties could discuss deducting attorney's fees from the State's lien. The statute did not, however, put limits on a court's authority to reduce the State's lien by subtracting attorney's fees where the court is making an allocation. Doe v. Vt. Office of Health Access, 191 Vt. 517, 54 A.3d 474 (2012).

§ 1911. Tobacco manufacturers; liability for Medicaid expenditures.

  1. After the State has paid medical assistance benefits to eligible persons for tobacco-related health conditions under this chapter, the State may recover from tobacco manufacturers the amount paid or likely to be paid for medical assistance to such persons, plus punitive damages, costs, reasonable attorney's fees, and other appropriate relief.
  2. The cause of action created in this section shall be a direct cause of action and not a subrogated cause of action. Affirmative defenses relating to subrogated causes of action shall not apply to this direct cause of action.
  3. In order to recover under subsection (a) of this section, the State shall prove:
    1. that the tobacco manufacturers were either negligent or produced a defective product unreasonably dangerous to the user or consumer who received or will receive medical assistance;
    2. that the tobacco product caused the health conditions for which the State seeks reimbursement; and
    3. the amount of compensatory damages and the appropriateness of any other relief sought.
  4. The right of the State to bring a cause of action against a tobacco manufacturer under this section shall be independent of and not construed to affect any rights or causes of action by an individual Medicaid benefits recipient to recover damages or other relief as a result of a tobacco-related health condition. In the event that recovery of Medicaid expenditures has been achieved and the individual recipient thereafter recovers damages from a tobacco manufacturer, then the tobacco manufacturer shall be entitled to a setoff for the amount of any such Medicaid recovery which represents the expenditure on behalf of the individual recipient.
  5. Existing common law and statutory actions available to recover Medicaid expenditures from a tobacco manufacturer, including direct action, are expressly preserved. An action brought pursuant to this section may be brought in addition to any existing common law or statutory action, or both, and shall not preempt, limit, or extinguish those actions.
  6. In any action brought pursuant to this section:
    1. Joint and several liability applies to any judgment in favor of the State, except as provided in subdivision (2) of this subsection.
    2. The State may proceed under the market share theory for allocation of damages between or among tobacco manufacturers, provided that the tobacco products involved are substantially interchangeable among brands, and substantially similar factual and legal issues are involved in seeking recovery against each individual tobacco manufacturer. In the event the State elects to proceed under the market share theory, joint and several liability shall not apply.
    3. Sums paid to all recipients may be recovered in a single action.
    4. If the number of recipients is sufficiently large so that it is impracticable to identify the recipients, the court may require the State to release information on individual recipients including individual Medicaid and medical records that are in the possession, custody, or control of the State, to the extent necessary for the defendant to establish its defenses, subject to such orders as are necessary to maintain the privacy of the recipients and to prevent Medicaid fraud.
    5. Evidence of statistical analysis may be admissible to prove or rebut the elements of subdivisions (c)(2) and (3) of this section.
  7. Before the State enters into a contract with an attorney to represent the State in an action brought pursuant to this section, the contract shall be reviewed and approved by the Joint Fiscal Committee. The Joint Fiscal Committee shall approve the contract if it determines that the contract is reasonable under the circumstances.

    Added 1997, No. 142 (Adj. Sess.), § 3, eff. April 23, 1998.

History

Legislative findings. 1997, No. 142 (Adj. Sess.), § 4, provides: "This act [which added this section] shall enable the state to recover state Medicaid benefits for tobacco-related health conditions paid or to be paid after the effective date of this act [April 23, 1998]. This act shall not apply to any Medicaid benefits for tobacco-related health conditions paid by the state prior to the effective date of this act."

Legislative findings and intent. - 1997, No. 142 (Adj. Sess.), § 1(a), lists several legislative findings regarding the health effects of tobacco use. Section 1(b) provides: "The general assembly intends that: (1) Medicaid shall be the payer of last resort for medically necessary goods and services furnished to Medicaid recipients. Subject to such exemptions as the general assembly may deem appropriate, all other sources of payment for those medical services shall be primary to Medicaid. (2) The state shall not bear the burden of payment for treatment of tobacco-related health conditions to the extent that the resources of a culpable tobacco manufacturer are available. (3) Statutory creation of an additional cause of action for recovery of Medicaid expenditures for treatment of tobacco-related health conditions from tobacco manufacturers does not preempt, extinguish or limit existing common law and statutory rights of recovery. Existing laws and rights are expressly preserved. (4) This act is remedial in nature and shall be liberally construed."

Subchapter 1A. Nonparticipating Tobacco Manufacturers

§ 1912. Findings and purpose.

  1. Cigarette smoking presents serious public health concerns to the State of Vermont and to the citizens of Vermont. The Surgeon General has determined that smoking causes lung cancer, heart disease, and other serious diseases, and that there are hundreds of thousands of tobacco-related deaths in the United States each year. These diseases most often do not appear until many years after a person begins smoking.
  2. Cigarette smoking also presents serious financial concerns for the State. Under certain health care programs, the State may have a legal obligation to provide medical assistance to eligible persons for health conditions associated with cigarette smoking, and those persons may have a legal entitlement to receive such medical assistance. Under these programs, the State pays millions of dollars each year to provide medical assistance to these persons for health conditions associated with cigarette smoking.
  3. It is the policy of the State that financial burdens imposed on the State by cigarette smoking be borne by tobacco product manufacturers rather than by the State to the extent that such manufacturers either determine to enter into a settlement with the State or are found culpable by the courts.
  4. On November 23, 1998, leading U.S. tobacco product manufacturers entered into a settlement agreement, entitled the "Master Settlement Agreement," with the State. In return for a release of past, present, and certain future claims against these manufacturers as described therein, the Master Settlement Agreement obligates these manufacturers to:
    1. pay substantial sums to the State, tied in part to their volume of sales;
    2. fund a national foundation devoted to the interests of public health; and
    3. make substantial changes in their advertising and marketing practices and corporate culture, with the intention of reducing underage smoking.
  5. It would be contrary to the policy of the State if tobacco product manufacturers who determine not to enter into such a settlement could use a resulting cost advantage to derive large, short-term profits in the years before liability may arise, without ensuring that the State will have an eventual source of recovery from them if they are proven to have acted culpably. Consequently, it is in the interest of the State to require that such manufacturers establish a reserve fund to guarantee a source of compensation, and to prevent such manufacturers from deriving large, short-term profits and then becoming judgment-proof before liability may arise.

    Added 1999, No. 130 (Adj. Sess.), § 1, eff. May 12, 2000.

§ 1913. Definitions.

As used in this subchapter:

  1. "Adjusted for inflation" means increased in accordance with the formula for inflation adjustment set forth in Exhibit C to the Master Settlement Agreement.
  2. "Affiliate" means a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person. Solely for purposes of this definition, the terms "owns," "is owned," and "ownership" mean ownership of an equity interest, or the equivalent thereof, of ten percent or more, and the term "person" means an individual, partnership, committee, association, corporation, or any other organization or group of persons.
  3. "Allocable share" means allocable share as that term is defined in the Master Settlement Agreement.
    1. "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains: (4) (A) "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains:
      1. any roll of tobacco wrapped in paper or in any substance not containing tobacco;
      2. tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or
      3. any roll of tobacco wrapped in any substance containing tobacco that, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subdivision (i) of this subdivision (A).
    2. The term "cigarette" includes "roll-your-own" (any tobacco that, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes). For purposes of this definition, 0.09 ounces of "roll-your-own" tobacco shall constitute one individual cigarette.
  4. "Master Settlement Agreement" means the settlement agreement (and related documents) entered into on November 23, 1998 by the State and leading U.S. tobacco product manufacturers.
  5. "Qualified escrow fund" means an escrow arrangement with a federally or State-chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least $1,000,000,000.00, where such arrangement requires that such financial institution hold the escrowed funds' principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow, from using, accessing, or directing the use of the funds' principal except as consistent with subsection 1914(b) of this title.
  6. "Released claims" means released claims as that term is defined in the Master Settlement Agreement.
  7. "Releasing parties" means releasing parties as that term is defined in the Master Settlement Agreement.
    1. "Tobacco product manufacturer" means an entity that, after May 12, 2000, directly (and not exclusively through any affiliate): (9) (A) "Tobacco product manufacturer" means an entity that, after May 12, 2000, directly (and not exclusively through any affiliate):
      1. manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer (as that term is defined in the Master Settlement Agreement) that will be responsible for the payments under the Master Settlement Agreement with respect to such cigarettes as a result of the provisions of Subsection II(mm) of the Master Settlement Agreement, and that pays the taxes specified in Subsection II(z) of the Master Settlement Agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States);
      2. is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or
      3. becomes a successor of an entity described in subdivision (i) or (ii) of this subdivision (A).
    2. The term "tobacco product manufacturer" shall not include an affiliate of a tobacco product manufacturer, unless such affiliate itself falls within any of subdivisions (A)(i)-(iii) of this subdivision (9).
  8. "Units sold" means the number of individual cigarettes sold in the State by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer, or similar intermediary or intermediaries) during the year in question, as measured by excise taxes collected by the State on packs (or "roll-your-own" tobacco containers) bearing the excise tax stamp of the State. The Department of Taxes shall adopt rules as are necessary to ascertain the amount of the State excise tax paid on the cigarettes of such tobacco product manufacturer for each year.

    Added 1999, No. 130 (Adj. Sess.), § 1, eff. May 12, 2000; amended 2015, No. 23 , § 136.

History

2021. In subdiv. (9)(A), substituted "May 12, 2000" for "the date of enactment of this subchapter".

- 2014. In subdiv. (9)(A), substituted "enactment of this subchapter" for "enactment of this act." The act and subchapter were enacted on May 12, 2000.

Amendments--2015 Subdiv. (10): Substituted "adopt rules" for "promulgate regulations" in the last sentence.

§ 1914. Requirements.

  1. Any tobacco product manufacturer selling cigarettes to consumers within the State (whether directly or through a distributor, retailer, or similar intermediary or intermediaries) after May 12, 2000 shall do one of the following:
    1. become a participating manufacturer (as that term is defined in Section II(jj) of the Master Settlement Agreement) and generally perform its financial obligations under the Master Settlement Agreement; or
    2. place into a qualified escrow fund by April 15 of the year following the year in question, the following amounts (as such amounts are adjusted for inflation):
      1. 2000: $0.0104712 per unit sold after May 12, 2000;
      2. for each year, 2001 and 2002: $0.0136125 per unit sold;
      3. for each year, 2003 through 2006: $0.0167539 per unit sold;
      4. for 2007 and each year thereafter: $0.0188482 per unit sold.
  2. A tobacco product manufacturer that places funds in escrow under subdivision (a)(2) of this section shall receive the interest or other appreciation on such funds as earned. Such funds themselves shall be released from escrow only under the following circumstances:
    1. to pay a judgment or settlement on any released claim brought against such tobacco product manufacturer by the State or any releasing party located or residing in the State. Funds shall be released from escrow under this subdivision in the order in which they were placed into escrow and only to the extent and at the time necessary to make payments required under such judgment or settlement;
    2. to the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow on account of units sold in the State in a particular year was greater than the Master Settlement Agreement payments, as determined pursuant to section IX(i) of that Agreement, including after final determination of all adjustments, that such manufacturer would have been required to make on account of such units sold had it been a participating manufacturer, the excess shall be released from escrow and revert back to such tobacco product manufacturer; or
    3. to the extent not released from escrow under subdivision (1) or (2) of this subsection, funds shall be released from escrow and revert back to such tobacco product manufacturer 25 years after the date on which they were placed into escrow.
  3. Each tobacco product manufacturer that elects to place funds into escrow under subdivision (a)(2) of this section shall annually certify to the Attorney General of this State that it is in compliance with this section. The Attorney General may bring a civil action on behalf of the State against any tobacco product manufacturer that fails to place into escrow the funds required under this section. Any tobacco product manufacturer that fails in any year to place into escrow the funds required under this section shall:
    1. Be required within 15 days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a violation of subdivision (a)(2) or subsection (b) of this section, may impose a civil penalty, payable to the General Fund of the State, in an amount not to exceed five percent of the amount improperly withheld from escrow per day of the violation, and in a total amount not to exceed 100 percent of the original amount improperly withheld from escrow.
    2. In the case of a knowing violation, be required within 15 days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a knowing violation of subdivision (a)(2) or subsection (b) of this section, may impose a civil penalty to be paid to the General Fund of the State in an amount not to exceed 15 percent of the amount improperly withheld from escrow per day of the violation, and in a total amount not to exceed 300 percent of the original amount improperly withheld from escrow.
    3. In the case of a second knowing violation, be prohibited from selling cigarettes to consumers within the State whether directly or through a distributor, retailer, or similar intermediary for a period not to exceed two years.
    4. Pay the reasonable attorney's fees and costs of the Attorney General in bringing an action under this section.
  4. Each failure to make an annual deposit required under this section shall constitute a separate violation.

    Added 1999, No. 130 (Adj. Sess.), § 1, eff. May 12, 2000; amended 2003, No. 14 , §§ 7, 8.

History

2021. Substituted "May 12, 2000” for "the date of enactment of this subchapter” in subsec. (a) and for "the effective date of this subchapter” in subdiv. (a)(2)(A).

- 2014. In subsec. (a), substituted "enactment of this subchapter" for "enactment of this act," and in subdiv. (a)(2)(A), substituted "effective date of this subchapter" for "effective date of this act". The act and subchapter were enacted on May 12, 2000.

- 2011. Deleted "each of" preceding "2007" in subdiv. (a)(2)(D) to correct a grammatical error.

Amendments--2003. Subdiv. (b)(2): Rewrote section.

Subdiv. (c)(1): Added "be required" at the beginning of first sentence, added "to" after "15 days," and substituted "it" for "the manufacturer" in the first sentence.

Subdiv. (c)(2): Added "be required" following "violation," and "to" after "15 days" in the first sentence.

Severability of enactment. 2003, No. 12 , § 9, provided: "If this act, or any portion of the amendment to 33 V.S.A. § 1914(b)(2) made by this act, is held by a court of competent jurisdiction to be unconstitutional, subdivision (b)(2) shall be deemed to be repealed in its entirety. If 33 V.S.A. § 1914(b) shall thereafter be held by a court of competent jurisdiction to be unconstitutional, this act shall be deemed repealed, and subdivision 1914(b)(2) shall be restored as if no such amendments had been made. Neither any holding of unconstitutionality nor the repeal of subdivision 1914(b)(2) shall affect, impair, or invalidate any other portion of section 1914 or the application of the section to any person or circumstance, and the remaining portions of section 1914 shall at all times continue in full force and effect."

Subchapter 1B. Complementary Legislation to Nonparticipating Tobacco Manufacturers Statutes

§ 1915. Findings and purpose.

  1. The General Assembly finds that the provisions of this subchapter will enhance compliance with subchapter 1A of this chapter and further the policies and purposes of that subchapter.
  2. The provisions of this subchapter are not intended to amend and shall not be interpreted as amending subchapter 1A of this chapter.

    Added 2003, No. 14 , § 1.

§ 1916. Definitions.

As used in this subchapter:

  1. "Brand family" means all styles of cigarettes sold under the same trademark and differentiated from one another by means of additional modifiers or descriptors, including "menthol," "lights," "kings," and "100s," and includes a brand name (alone or in conjunction with any other word), trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, a previously known brand of cigarettes.
  2. "Cigarette" has the same meaning as in subdivision 1913(4) of this title.
  3. "Commissioner" means the Commissioner of Taxes.
  4. "Wholesale dealer" has the same meaning as in 32 V.S.A. § 7702(16) .
  5. "Master Settlement Agreement" has the same meaning as in subdivision 1913(5) of this title.
  6. "Nonparticipating manufacturer" means any tobacco product manufacturer that is not a participating manufacturer.
  7. "Participating manufacturer" has the same meaning as in section II(jj) of the Master Settlement Agreement and all amendments to the Agreement.
  8. "Qualified escrow fund" has the same meaning as in subdivision 1913(6) of this title.
  9. "Retail dealer" has the same meaning as in 32 V.S.A. § 7702(10) .
  10. [Repealed.]
  11. "Tobacco product manufacturer" has the same meaning as in subdivision 1913(9) of this title.
  12. "Units sold" has the same meaning as in subdivision 1913(10) of this title.

    Added 2003, No. 14 , § 1; amended 2015, No. 57 , § 83, eff. June 11, 2015; 2021, No. 20 , § 301.

History

2008. In subdiv. (9), substituted "7702(10)" for "7702(9)" to correct the cross-reference.

Amendments--2021 Section amended generally.

Amendments--2015. Subdiv. (4): Substituted "'Wholesale dealer'" for "'Distributor'" preceding "shall" and "7702(16)" for "7702(4).

Subdiv. (10): Repealed.

§ 1917. Certifications.

  1. Every tobacco product manufacturer whose cigarettes are sold in this State, whether directly or through a licensed wholesale dealer, retailer, or similar intermediary or intermediaries, shall execute and deliver on a form prescribed by the Attorney General a certification to the Attorney General not later than April 30 each year certifying under penalty of perjury that, as of the date of such certification, such tobacco product manufacturer either is a participating manufacturer or is in full compliance with subchapter 1A of this chapter, including all quarterly installment payments required by section 1922 of this title.
  2. A participating manufacturer shall:
    1. include in its certification a list of its brand families;
    2. update its list 30 calendar days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the Attorney General.
  3. A nonparticipating manufacturer shall:
    1. include in its certification:
      1. a list of all of its brand families and the number of units sold for each brand family that were sold in the State during the previous calendar year;
      2. a list of all of its brand families that have been sold in the State during the current calendar year;
      3. a list of any brand family sold in the State during the preceding calendar year that is no longer being sold in the State as of the date of such certification; and
      4. the name and business address of any other tobacco product manufacturer that has manufactured in the past calendar year or is currently manufacturing or selling any brand family listed in the nonparticipating manufacturer's certification;
    2. also certify:
      1. that the nonparticipating manufacturer is registered to do business in the State or has appointed an in-state agent for service of process and provided notice thereof as required by this subchapter;
      2. that the nonparticipating manufacturer has established and continues to maintain a qualified escrow fund; has executed an escrow agreement that both governs the qualified escrow fund and has been reviewed and approved by the Attorney General; and is in full compliance with subchapter 1A of this chapter;
      3. the following information with respect to each qualified escrow fund established pursuant to subchapter 1A of this chapter:
        1. the name, address, and telephone number of the financial institution where the nonparticipating manufacturer has established such qualified escrow fund;
        2. the account number of such qualified escrow fund and any subaccount number for the State;
        3. the amount the nonparticipating manufacturer placed in such fund for cigarettes sold in the State during the preceding calendar year, the dates and amount of each deposit, and evidence or verification as may be deemed necessary by the Attorney General to confirm the foregoing; and
        4. the amounts and dates of any withdrawal or transfer of funds the nonparticipating manufacturer made at any time from the fund; and
      4. that the nonparticipating manufacturer is in full compliance with this subchapter and any rules adopted pursuant to this subchapter; and
    3. update its list of brand families 30 calendar days prior to any addition or modification of its brand families by executing and delivering supplemental certification to the Attorney General.
    1. A tobacco product manufacturer may not include a brand family in its certification unless: (d) (1)  A tobacco product manufacturer may not include a brand family in its certification unless:
      1. in the case of a participating manufacturer, the participating manufacturer affirms that the brand family shall be deemed to be its cigarettes for purposes of calculating its payments under the Master Settlement Agreement for the relevant year, in the volume and shares determined pursuant to the Master Settlement Agreement; and
      2. in the case of a nonparticipating manufacturer, the nonparticipating manufacturer affirms that the brand family shall be deemed to be its cigarettes for purposes of subchapter 1A of this chapter.
    2. Nothing in this subsection shall be construed as limiting or otherwise affecting the State's right to contend that the manufacture or sale of a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the Master Settlement Agreement or for purposes of subchapter 1A of this chapter.
  4. A tobacco product manufacturer shall maintain all invoices and documentation of sales and other such information relied upon for such certification for a period of five years from the date the certification is executed, unless otherwise required by law to maintain them for a greater period of time.

    Added 2003, No. 14 , § 1; amended 2015, No. 57 , § 84, eff. June 11, 2015; 2021, No. 20 , § 302.

History

Amendments--2021 Subsec. (a): Substituted "not" for "no" preceding "later than April 30".

Subdiv. (c)(2)(D): Substituted "rules adopted" for "regulations promulgated" and "to this subchapter" for "thereto".

Amendments--2015. Subsec. (a): Substituted "licensed" for "distributor," preceding "wholesale dealer".

§ 1918. Directory of cigarettes approved for stamping and sale.

  1. The Attorney General shall develop and publish on its website a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of this subchapter (the "directory") and all brand families that are listed in such certifications, except as noted in this subsection.
    1. The Attorney General shall not include or retain in such directory any brand family of any tobacco product manufacturer that has failed to provide the required certification or whose certification the Attorney General determines is not in compliance with this subchapter, unless the Attorney General determines that such violation has been cured to the satisfaction of the Attorney General.
    2. Neither a tobacco product manufacturer nor any brand family of the tobacco product manufacturer shall be included or retained in the directory if the Attorney General concludes that either:
      1. any escrow funds required to be deposited pursuant to subchapter 1A of this chapter for any period related to any brand family, whether or not listed by such tobacco product manufacturer in its certification, have not been placed into a qualified escrow fund governed by an escrow agreement that has been approved by the Attorney General; or
      2. any outstanding judgment, including interest thereon, obtained pursuant to subchapter 1A of this chapter related to that tobacco product manufacturer or any brand family of the tobacco product manufacturer has not been fully satisfied.
  2. The Attorney General shall update the directory in order to correct mistakes and add or remove a tobacco product manufacturer or brand family to keep the directory in conformity with the requirements of this subchapter, and the Attorney General shall transmit by e-mail or other practicable means to each stamping agent, and to any other entity that registers with the Department of Taxes or the Attorney General requesting receipt of the same, notice at least 30 days prior to any removal from the directory of any tobacco product manufacturer or brand family.
  3. Unless otherwise provided by agreement between a licensed wholesale dealer and a tobacco product manufacturer, a licensed wholesale dealer shall be entitled to a refund from a tobacco product manufacturer for any money paid by the licensed wholesale dealer to the tobacco product manufacturer for any cigarettes of that tobacco product manufacturer still in the possession of the licensed wholesale dealer on the date of the Attorney General's removal from the directory of that tobacco product manufacturer or the individual styles or brands of cigarettes of that tobacco product manufacturer. Also, unless otherwise provided by agreement between a retail dealer and a licensed wholesale dealer or a tobacco product manufacturer, a retail dealer shall be entitled to a refund from either a licensed wholesale dealer or a tobacco product manufacturer for any money paid by the retail dealer to the licensed wholesale dealer or tobacco product manufacturer for any cigarettes of that licensed wholesale dealer or tobacco product manufacturer still in the possession of the retail dealer on the date of the Attorney General's removal from the directory of that tobacco product manufacturer or the individual styles or brands of cigarettes of that tobacco product manufacturer. The Attorney General shall not restore to the directory a tobacco product manufacturer or any individual styles or brands or cigarettes or, if applicable, brand families of that tobacco product manufacturer until the tobacco product manufacturer has paid all licensed wholesale dealers any refund due pursuant to this section.
  4. The Commissioner shall refund to a licensed wholesale dealer any tax paid under 32 V.S.A. chapter 205 on products no longer saleable in the State under this subchapter.
  5. A determination of the Attorney General not to list or to remove from the directory a tobacco product manufacturer, an individual style or brand of cigarette or, if applicable, brand family is a final agency decision with the same status as an agency decision or order in a contested case under the Vermont Administrative Procedure Act. A tobacco product manufacturer aggrieved by a determination of the Attorney General under this section may appeal to the Superior Court in Washington County, which shall review the matter pursuant to 3 V.S.A. § 815 .
  6. If a nonparticipating manufacturer who has not been listed on the directory for the previous three years files a certification pursuant to this section, or if the Attorney General determines that a nonparticipating manufacturer who has filed a certification pursuant to this section poses an elevated risk for noncompliance with sections 1912-1914 of this title, neither the nonparticipating manufacturer nor any of its brand families shall be included or retained on the directory unless and until the nonparticipating manufacturer or its U.S. importer that undertakes joint and several liability for the manufacturer's performance in accordance with section 1925 of this title and amendments to that section has posted a bond in accordance with this subsection. Proof of the bond shall be submitted with the certification on a form approved by the Attorney General.
    1. The bond required under this subsection shall be written in favor of the State of Vermont and shall be conditioned on the performance by the nonparticipating manufacturer or its U.S. importer that undertakes joint and several liability for the manufacturer's performance in accordance with sections 1912-1914 and 1925 of this title. The bond shall be issued by a surety company in good standing and authorized to transact business in this State to secure the payment of any escrow due or that may become due from the nonparticipating manufacturer or its U.S. importer. The bond shall be maintained as a condition to the nonparticipating manufacturer and its brand families being included on the directory and shall remain in place for the pendency of such listing.
    2. The bond required shall be $20,000.00 for a nonparticipating manufacturer that has not been listed on the Vermont directory for at least three years prior to the nonparticipating manufacturer's application for certification.
    3. The bond required shall be $50,000.00 for a nonparticipating manufacturer that poses an elevated risk for noncompliance with sections 1912-1914 of this title.
    4. A nonparticipating manufacturer shall be deemed to pose an elevated risk for noncompliance with sections 1912-1914 of this title if it:
      1. failed in the previous three years to make a full and timely escrow deposit due pursuant to section 1914 of this title, unless the failure was promptly cured upon notice;
      2. was involuntarily removed from any state's directory, unless the removal was determined to have been erroneous or illegal; or
      3. has litigation pending against it in any state for escrow or for penalties, costs, or attorney's fees related to noncompliance with any state's escrow laws.
    5. If a nonparticipating manufacturer that has posted a bond has failed to make or to have made on its behalf by an entity with joint and several liability escrow deposits equal to the full amount owed for a quarter within 15 days following the due date for the quarter under sections 1914 and 1925 of this title, the State may execute upon the bond first to recover delinquent escrow, which amount shall be deposited into a qualified escrow account under section 1914, and then to recover civil penalties and costs authorized under that section. Escrow obligations above the amount collected on the bond remain due from that nonparticipating manufacturer and, as provided in section 1925 of this title, from importers that sold its cigarettes in the calendar quarter.

      Added 2003, No. 14 , § 1; amended 2003, No. 113 (Adj. Sess.), § 2; 2013, No. 14 , § 22; 2015, No. 57 , § 85, eff. June 11, 2015; 2021, No. 20 , § 303.

History

Reference in text. The Vermont Administrative Procedure Act, referred to in subsec. (e), is codified as 3 V.S.A. chapter 25.

Amendments--2021 Subsec. (f): Substituted "to that section" for "thereto" near the end of the first sentence.

Amendments--2015. Subsec. (c): Substituted "licensed wholesale dealer" for "stamping agent" and for "distributor" wherever they appeared.

Subsec. (d): Substituted "licensed wholesale dealer" for "retailer dealer or stamping agent".

Amendments--2013. Substituted "tobacco product" for "nonparticipating" preceding "manufacturer" in subdiv. (a)(1) and added subsec. (f).

Amendments--2003 (Adj. Sess.). Subsec. (b): Deleted "addition to or" following "30 days prior to any".

§ 1919. Prohibition against the stamping and sale of cigarettes not included in the directory.

No person shall affix a tax stamp to or sell or offer for sale in this State any package or container of cigarettes manufactured by a tobacco product manufacturer or belonging to a brand family that is not included in the directory, or sell, offer, or possess for sale, in this State, cigarettes of a tobacco product manufacturer or brand family not included in the directory.

Added 2003, No. 14 , § 1.

§ 1920. Agent for service of process.

  1. Any nonresident or foreign nonparticipating manufacturer that has not registered to do business in the State as a foreign corporation or other business entity shall, as a condition precedent to having its brand families included or retained in the directory, appoint and continually engage without interruption the services of an agent in this State to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this subchapter or subchapter 1A of this chapter, or both, may be served in any manner authorized by law. Such service shall constitute legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, telephone number, and satisfactory proof of the appointment and availability of such agent to the Attorney General. The Secretary of State shall be designated as agent for service of process for importers of nonparticipating manufacturers located outside the United States. Service shall be made upon the Secretary of State in accordance with the provisions of 12 V.S.A. §§ 851 and 852.
  2. The nonparticipating manufacturer shall provide notice to the Attorney General 30 calendar days prior to termination of the authority of any such agent and shall further provide proof to the satisfaction of the Attorney General of the appointment of a new agent no less than five calendar days prior to the termination of an existing agent appointment. In the event an agent terminates an agent appointment, the nonparticipating manufacturer shall notify the Attorney General of said termination within five calendar days and shall include proof to the satisfaction of the Attorney General of the appointment of a new agent.
  3. Any nonparticipating manufacturer whose cigarettes are sold in this State who has not appointed and engaged an agent as required by this section shall be deemed to have appointed the Secretary of State as such agent and may be proceeded against in courts of this State by service of process upon the Secretary of State; provided, however, that the appointment of the Secretary of State as such agent shall not satisfy the condition precedent, required by subsection (a) of this section, for having the individual styles or brands of cigarettes or, if applicable, brand families of the nonparticipating manufacturer included or retained in the directory.

    Added 2003, No. 14 , § 1; amended 2011, No. 166 (Adj. Sess.), § 5; 2021, No. 20 , § 304.

History

Amendments--2021 Subsec. (c): Deleted "herein" preceding the first instance of "required" and inserted "by this section" thereafter.

Amendments--2011 (Adj. Sess.). Subsec. (a): Added the last two sentences.

§ 1921. Reporting and sharing of information.

  1. At the date specified in 32 V.S.A. § 7785 or 7813, for monthly reports from licensed wholesale dealers, or at such date and frequency as the Commissioner may require for other licensed wholesale dealers, which will be at least quarterly, each licensed wholesale dealer shall submit such information as the Commissioner requires to facilitate compliance with subchapter 1A of this chapter and this subchapter, including a list by brand family of the total number of cigarettes, or, in the case of roll-your-own tobacco, the equivalent stick count, as determined pursuant to the formula set forth in subchapter 1A of this chapter, for which the licensed wholesale dealer affixed stamps during the reporting period or otherwise paid the tax due for such cigarettes. Licensed wholesale dealers shall maintain, and make available to the Commissioner, all documentation and other information relied upon in reporting to the Commissioner for a period of six years.
  2. The Attorney General may require at any time from a nonparticipating manufacturer proof from the financial institution in which a tobacco product manufacturer has established a qualified escrow fund for the purpose of compliance with subchapter 1A of this chapter of the amount of money being held in such fund on behalf of the State and the dates of deposits, and listing the amounts of all withdrawals from such fund and the dates thereof; any such nonparticipating manufacturer shall provide the requisite proof within 10 business days of the date it is requested. In the event that a nonparticipating manufacturer fails to provide the requisite proof within said time period, the Attorney General shall remove the nonparticipating manufacturer and all of its styles or brands of cigarettes from the directory.
  3. The Attorney General may require a licensed wholesale dealer or tobacco product manufacturer to submit any additional information, including samples of the packaging or labeling of each brand family, as is necessary to enable the Attorney General to determine whether a tobacco product manufacturer is in compliance with this subchapter and subchapter 1A of this chapter.
  4. The Attorney General is authorized to disclose to the Commissioner and, notwithstanding the provisions of 32 V.S.A. chapter 103, the Commissioner is authorized to disclose to the Attorney General any information received under this subchapter or subchapter 1A of this chapter, if such information is requested by the other for the purposes of determining compliance with or enforcing the provisions of those statutes. The Attorney General and Commissioner shall share with each other the information received under this subchapter or subchapter 1A of this chapter, and may share such information with other federal, State, or local agencies as necessary for the purposes of enforcement of this subchapter, the State's nonparticipating tobacco manufacturers' statutes, or corresponding laws of other states.

    Added 2003, No. 14 , § 1; amended 2003, No. 113 (Adj. Sess.), § 1; 2015, No. 57 , § 86, eff. June 11, 2015.

History

2013. In subsec. (a), deleted ", but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Amendments--2015. Subsec. (a): Deleted "or distributors" preceding ", or at such date" in the first sentence and substituted "licensed wholesale dealers" for "stamping agent" wherever it appeared.

Subsec. (c): Substituted "licensed wholesale dealer" for "stamping agent".

Amendments--2003 (Adj. Sess.). Added new subsec. (c) and redesignated former subsec. (c) as subsec. (d).

§ 1922. Quarterly escrow deposits.

To promote compliance with the provisions of this subchapter, the Attorney General may adopt rules requiring a nonparticipating manufacturer to make the escrow deposits required by subchapter 1A of this chapter in quarterly installments during the year in which the sales covered by such deposits are made.

Added 2003, No. 14 , § 1; amended 2015, No. 23 , § 137.

History

Amendments--2015 Substituted "adopt rules" for "promulgate regulations" preceding "requiring".

§ 1923. Penalties and other remedies.

  1. In addition to or in lieu of any other civil or criminal remedy provided by law, upon a determination that a stamping agent has violated this subchapter or any rule adopted pursuant to this subchapter, the Attorney General may, for each violation of this subchapter, also impose a civil penalty in an amount not to exceed the greater of 500 percent of the retail value of the cigarettes sold, offered for sale, or possessed for sale in violation of this subchapter or $5,000.00. Each stamp affixed and each sale or offer to sell cigarettes in violation of section 1919 of this subchapter shall constitute a separate violation.
  2. The Attorney General may seek an injunction to restrain a threatened or actual violation of this subchapter by a stamping agent and to compel the stamping agent to comply with the provisions of this subchapter. In any action brought pursuant to this section, the State shall be entitled to recover the costs of investigation, expert witness fees, costs of the action, and reasonable attorney's fees.
  3. It shall be unlawful for a person to:
    1. Sell or distribute cigarettes that the person knows or should know are intended for distribution or sale in the State in violation of this subchapter.
    2. Acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in the State in violation of this subchapter. A violation of this section shall be a misdemeanor punishable by imprisonment for not more than one year and a fine of not more than $5,000.00, or both.
  4. A person who violates section 1919 of this title engages in an unfair and deceptive trade practice in violation of the State's Consumer Protection Act, 9 V.S.A. § 2451 et seq.
  5. If a court determines that a person has violated the provisions of this subchapter, the court shall order any profits, gain, gross receipts, or other benefit from the violation to be disgorged and paid to the State Treasurer for deposit in the Tobacco Litigation Settlement Fund established pursuant to 32 V.S.A. § 435a .
  6. Unless otherwise expressly provided, the penalties or remedies, or both, provided by this subchapter are cumulative to each other and to the penalties or remedies, or both, available under all other laws of this State.

    Added 2003, No. 14 , § 1; amended 2011, No. 109 (Adj. Sess.), § 3, eff. May 8, 2012; 2011, No. 136 (Adj. Sess.), § 1b, eff. May 18, 2012; 2021, No. 20 , § 305.

History

Amendments--2021 Subsec. (a): In the first sentence, substituted "rule" for "regulation" preceding "adopted" and "to this subchapter" for "thereto" following "pursuant".

Amendments--2011 (Adj. Sess.). Subsec. (d): Act Nos. 109 and 136 substituted "Consumer Protection Act" for "Consumer Fraud Act".

Statutory revision. 2011, No. 136 (Adj. Sess.), § 1b(a) provides: "The legislative council, under its statutory revision authority pursuant to 2 V.S.A. § 424, is directed to delete the term 'consumer fraud' and to insert in lieu thereof the term 'consumer protection' wherever it appears in each of the following sections: 7 V.S.A. § 1010; 8 V.S.A. §§ 2706, 2709, and 2764; 9 V.S.A. § 2471; 18 V.S.A. §§ 1511, 1512, 4086, 4631, 4633, 4634, and 9473; 20 V.S.A. § 2757; and 33 V.S.A. §§ 1923 and 2010; and in any other sections as appropriate."

§ 1924. Miscellaneous provisions.

  1. The first report of stamping agents required by section 1921 of this title shall be due 30 days after the effective date of this subchapter; the initial certification of a tobacco product manufacturer required by section 1917 of this title shall be due 45 days after the effective date of this subchapter; and the directory described in section 1918 of this title shall be published or made available within 120 days after the effective date of this subchapter.
  2. Both the Attorney General and the Commissioner may adopt rules necessary to effect the purposes of this subchapter.
  3. In any action brought by the State to enforce the provisions of this subchapter, the State shall be entitled to recover the costs of investigation, expert witness fees, costs of the action, and reasonable attorney's fees.
  4. If a court of competent jurisdiction finds that the provisions of this subchapter and subchapter 1A of this chapter conflict and cannot be harmonized, then such provisions of subchapter 1A shall control. If any section, subsection, subdivision, sentence, or phrase of this subchapter causes subchapter 1A of this chapter to no longer constitute a qualifying act or model statute, as those terms are defined in the Master Settlement Agreement, then that portion of this subchapter shall not apply. If any section, subsection, subdivision, sentence, or phrase of this subchapter is for any reason held to be invalid, unlawful, or unconstitutional, such decision shall not affect the validity of the remaining portions of this subchapter or any part thereof.

    Added 2003, No. 14 , § 1; amended 2021, No. 20 , § 306.

History

2021. The effective date of this subchapter, referenced in subsec. (a) of this section, was July 1, 2003.

Amendments--2021 Subsec. (b): Substituted "rules" for "regulations" following "adopt".

§ 1925. Joint and several liability of importers on nonparticipating manufacturer's brand families.

Each nonparticipating manufacturer located outside the United States and each importer of any nonparticipating manufacturer's brand families that are sold in the State shall bear joint and several liability for the deposit of all escrow due and payment of all penalties, costs, and attorney's fees imposed under this subchapter. The nonparticipating manufacturer, as a condition to being listed on the directory, shall provide a declaration on a form prescribed by the Attorney General from each of its importers of any of its brand families to be sold in the State that the importer accepts joint and several liability for all escrow deposits due pursuant to section 1914 of this title and for all penalties, costs, and attorney's fees assessed under section 1914 of this title.

Added 2011, No. 166 (Adj. Sess.), § 4, eff. May 16, 2012.

Subchapter 2. Health Care Improvement Program

History

Agency of Human Services; temporary provider tax modification authority. 2019, No. 91 (Adj. Sess.), § 2 provides: "(a) During a declared state of emergency in Vermont as a result of COVID-19 and for a period of six months following the termination of the state of emergency, the Secretary of Human Services may modify payment of all or a prorated portion of the assessment imposed on hospitals by 33 V.S.A. § 1953, and may waive or modify payment of all or a prorated portion of the assessment imposed by 33 V.S.A. chapter 19, subchapter 2 for one or more other classes of health care providers, if the following two conditions are met:

"(1) the action is necessary to preserve the ability of the providers to continue offering necessary health care services; and

"(2) the Secretary has obtained the approval of the Joint Fiscal Committee and the Emergency Board as set forth in subsections (b) and (c) of this section.

"(b)(1) If the Secretary proposes to waive or modify payment of an assessment in accordance with the authority set forth in subsection (a) of this section, the Secretary shall first provide to the Joint Fiscal Committee:

"(A) the Secretary's rationale for exercising the authority, including the balance between the fiscal impact of the proposed action on the State budget and the needs of the specific class or classes of providers; and

"(B) a plan for mitigating the fiscal impact to the State.

"(2) Upon the Joint Fiscal Committee's approval of the plan for mitigating the fiscal impact to the State, the Secretary may waive or modify payment of the assessment as proposed unless the mitigation plan includes one or more actions requiring the approval of the Emergency Board.

"(c)(1) If the mitigation plan includes one or more actions requiring the approval of the Emergency Board, the Secretary shall obtain the Emergency Board's approval for the action or actions prior to waiving or modifying payment of the assessment.

"(2) Upon the Emergency Board's approval of the action or actions, the Secretary may waive or modify payment of the assessment as proposed."

§ 1950. Purpose.

  1. The purpose of this subchapter is to establish assessments on health care providers, which funds shall be used in the State's health care program in such a way as to be eligible for federal financial participation.
  2. The Secretary and the Commissioner shall interpret and administer the provisions of this subchapter so as to maximize federal financial participation and avoid disallowances of federal financial participation.
  3. If the purpose of this subchapter can no longer be accomplished, the Secretary of Human Services shall so notify the General Assembly on or before the following February 15.

    Added 1991, No. 253 (Adj. Sess.), § 1; amended 1993, No. 56 , § 1, eff. June 3, 1993; 2005, No. 71 , § 282; 2009, No. 156 (Adj. Sess.), § I.51.

History

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "commissioner" for "director".

Amendments--2005. Subsec. (a): Deleted "a revolving fund consisting of" following "establish" and substituted "on" for "from" following "assessments".

Subsec. (b): Substituted "director" for "commissioner".

Amendments--1993. Substituted "health care providers" for "hospitals and nursing homes" following "assessments from" in subsec. (a), added a new subsec. (b), and redesignated former subsec. (b) as subsec. (c).

§ 1951. Definitions.

As used in this subchapter:

  1. "Assessment" means a tax levied on a health care provider pursuant to this chapter.
    1. "Home health services" means any of the following: (2) (A) "Home health services" means any of the following:
      1. those medically necessary, intermittent, skilled home health services provided by Medicare-certified home health agencies of the type covered under Title XVIII (Medicare) or XIX (Medicaid) of the Social Security Act;
      2. services covered under the adult and pediatric High Technology Home Care programs as of January 1, 2015;
      3. personal care, respite care, and companion care services provided through the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration; and
      4. hospice services.
    2. The term "home health services" shall not include any other service provided by a home health agency, including:
      1. private duty services;
      2. case management services, except to the extent that such services are performed in order to establish an individual's eligibility for services described in subdivision (A) of this subdivision (2);
      3. homemaker services;
      4. adult day services;
      5. group-directed attendant care services;
      6. primary care services;
      7. nursing home room and board when a hospice patient is in a nursing home; and
      8. health clinics, including occupational health, travel, and flu clinics.
    3. The term "home health services" shall not include any services provided by a home health agency under any other program or initiative unless the services fall into one or more of the categories described in subdivision (A) of this subdivision (2). Other programs and initiatives include:
      1. the Flexible Choices or Assistive Devices options under the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration;
      2. services provided to children under the early and periodic screening, diagnostic, and treatment Medicaid benefit;
      3. services provided pursuant to the Money Follows the Person demonstration project;
      4. services provided pursuant to the Traumatic Brain Injury Program; and
      5. maternal-child wellness services, including services provided through the Nurse Family Partnership program.
  2. "Commissioner" means the Commissioner of Vermont Health Access.
  3. [Repealed.]
  4. "Health care provider" means any hospital, nursing home, intermediate care facility for people with intellectual disabilities, home health agency, or retail pharmacy.
  5. "Home health agency" means an entity that has received a certificate of need from the State to provide home health services or is certified to provide services pursuant to 42 U.S.C. § 1395x (o).
  6. "Hospital" means a hospital licensed under 18 V.S.A. chapter 43.
  7. "Intermediate Care Facility for People with Developmental Disabilities" (ICF/DD) means a facility that provides long-term health related care to residents with developmental disabilities pursuant to subdivision 1902(a)(31) of the Social Security Act ( 42 U.S.C. § 1396a (a)(31)).
  8. "Mental hospital" or "psychiatric facility" means a hospital as defined in 18 V.S.A. § 1902(1)(B) or (H), but does not include psychiatric units of general hospitals.
  9. "Net patient revenues" means a provider's gross charges related to patient care services less any deductions for bad debts, charity care, contractual allowances, and other payer discounts.
  10. "Nursing home" means a health care facility licensed under chapter 71 of this title.
  11. "Department" means the Department of Vermont Health Access.
  12. "Pharmacy" means a Vermont drug outlet licensed by the Vermont State Board of Pharmacy pursuant to 26 V.S.A. chapter 36 in which prescription drugs are sold at retail.
  13. "Secretary" means the Secretary of Human Services.
  14. "Ambulance agency" means an ambulance agency licensed pursuant to 18 V.S.A. chapter 17.

    Added 1991, No. 94 , § 1; amended 1991, No. 253 (Adj. Sess.), § 2; 1993, No. 56 § 1, eff. June 3, 1993; 1999, No. 49 , § 200; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 71 , § 283; 2005, No. 215 (Adj. Sess.), § 318; 2009, No. 156 (Adj. Sess.), § I.52; 2013, No. 96 (Adj. Sess.), § 207; 2013, No. 131 (Adj. Sess.), § 44, eff. May 20, 2014; 2015, No. 134 (Adj. Sess.), § 29; 2017, No. 73 , § 18, eff. June 13, 2017; 2019, No. 6 , § 75, eff. April 22, 2019.

History

Reference in text. Title XVIII of the Social Security Act, referred to in subdiv. (2)(A)(i), is codified as 42 U.S.C. §§ 1395 et seq.

Title XIX of the Social Security Act, referred to in subdiv. (2)(A)(i), is codified as 42 U.S.C. § 1396 et seq.

Revision note. Substituted "7102(10)" for "71022(10)" in subdiv. (3) to correct an error in the reference.

Reference to "chapter" in the introductory paragraph changed to "subchapter" for purposes of clarity in view of the redesignation of chapter 29 of this title, as added by 1991, No. 94 , § 1, as this subchapter.

Amendments--2019. Subdiv. (4): Repealed.

Amendments--2017. Subdiv. (2): Amended generally.

Subdiv. (10): Substituted "'Net patient revenues"' for "'Net operating revenues"' preceding "means"; and inserted "related to patient care services" following "charges".

Amendments--2015 (Adj. Sess.). Subdiv. (15): Added.

Amendments--2013 (Adj. Sess.). Subdiv. (2): Act No. 96 substituted "persons who are" for "the" following "home for" and "7102(3)" for "7102(10)" following "subdivision" in the second sentence.

Subdiv. (2): Act 131 substituted "7102(3)" for "7102(10)" following "subdivision".

Subdiv. (5): Substituted "people with intellectual disabilities" for "the mentally retarded" following "facility for".

Subdiv. (8): Substituted "People with Developmental Disabilities" for "the Mentally Retarded" following "Facility for", "ICF/DD" for "ICF/MR", and "developmental disabilities" for "mental retardation" following "residents with".

Amendments--2009 (Adj. Sess.) Subdivs. (3) and (12): Amended generally.

Amendments--2005 (Adj. Sess.). Subdiv. (4): Substituted "state health care resources fund" for "Vermont health access trust fund".

Amendments--2005. Section amended generally.

Amendments--1999 (Adj. Sess.). Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare" in subdiv. (2) and "department of prevention, assistance, transition, and health access" for "department of social welfare" in subdiv. (4).

Amendments--1999. Section amended generally.

Amendments--1993. Inserted "ICF/MRs" following "hospitals" in subdivs. (1) and (4), added a new subdiv. (5), redesignated former subdiv. (5) as subdiv. (6) and deleted "general" following "means a" and "excluding licensed inpatient psychiatric facilities" following "Title 18" in that subdiv., added new subdivs. (7) and (8), redesignated former subdiv. (6) as subdiv. (9) and deleted "participating in the Medicaid program, except any nursing home operated by the state of Vermont" following "Title 33" in that subdiv., and added subdiv. (10).

Amendments--1991 (Adj. Sess.). Inserted "and" preceding "nursing homes" and deleted "and home health agencies" thereafter in subdivs. (1) and (4), deleted "improvement" preceding "trust" in subdiv. (4), and deleted former subdiv. (5) and redesignated former subdivs. (6) and (7) as subdivs. (5) and (6), respectively.

Retroactive effective date--2019 amendment 2019, No. 6 , § 105(a), provides that notwithstanding 1 V.S.A. § 214, the amendment to this section by that act shall take effect on passage and apply retroactively to July 1, 2018.

§ 1952. General provisions.

  1. The Secretary of Human Services shall adopt rules necessary for the implementation of this subchapter.
  2. The Department may use not more than one percent of the assessments received under the provisions of this subchapter for necessary administrative expenses associated with this subchapter.
  3. The budget of any hospital assessed under the provisions of this subchapter that includes a nursing home, home health agency, or physician's office practice shall have its assessment based only on the hospital portion of its budget. The nursing home and home health agency components of the budget shall be assessed separately as provided for in this subchapter.
  4. No health care provider conducted, maintained, or operated by the U.S. government shall be subject to an assessment levied under the provisions of this subchapter.
  5. Each assessment imposed pursuant to this subchapter is the liability of the health care provider and no portion thereof shall be charged directly to any patient or resident, but may be treated as a cost of doing business for the purpose of determining rates and charges.
  6. If a health care provider fails to pay its assessments under this subchapter according to the schedule or a variation thereof adopted by the Commissioner, the Commissioner may, after notice and opportunity for hearing, deduct these assessment arrears and any late-payment penalties from Medicaid payments otherwise due to the provider. The deduction of these assessment arrears may be made in one or more installments on a schedule to be determined by the Commissioner.

    Added 1991, No. 94 , § 1; amended 1991, No. 253 (Adj. Sess.), § 3; 1993, No. 56 § 1, eff. June 3, 1993; 1999, No. 49 , § 201; 2005, No. 71 , § 284; 2007, No. 190 (Adj. Sess.), § 49, eff. June 6, 2008; 2009, No. 156 (Adj. Sess.), § I.53.

History

Revision note. References to "chapter" changed to "subchapter" throughout this section for purposes of clarity in view of the redesignation of chapter 29 of this title, as added by 1991, No. 94 , § 1, as this subchapter.

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "department" for "office".

Subsec. (f): Substituted "commissioner" for "director" in three places.

Amendments--2007 (Adj. Sess.). Subsec. (f): Added.

Amendments--2005. Subsec. (b): Substituted "office" for "department".

Amendments--1999 Subsec. (c): Substituted "and home health agency components" for "component" in the second sentence.

Amendments--1993. Substituted "component" for "or home health components" following "nursing home" in the second sentence of subsec. (c), substituted "health care provider" for "hospital or nursing home" preceding "conducted" and deleted "or the state of Vermont or a duly authorized agency thereof, including the Vermont state hospital and the Vermont veterans' home" following "government" in subsec. (d), and added subsec. (e).

Amendments--1991 (Adj. Sess.). Deleted former subsec. (a) and redesignated former subsecs. (b) and (c) as subsecs. (a) and (b), respectively; deleted former subsecs. (d) and (e); redesignated former subsec. (f) as subsec. (c); and added a new subsec. (d).

§ 1953. Hospital assessment.

  1. Hospitals shall be subject to an annual assessment as follows:
    1. Beginning July 1, 2012, each hospital's annual assessment, except for hospitals assessed under subdivision (2) of this subsection, shall be six percent of its net patient revenues (less chronic, skilled, and swing bed revenues).
    2. Beginning July 1, 2004, each mental hospital or psychiatric facility's annual assessment shall be 4.21 percent, provided that the U.S. Department of Health and Human Services grants a waiver to the uniform assessment rate pursuant to 42 C.F.R. § 433.68(e). If the U.S. Department of Health and Human Services fails to grant a waiver, mental hospitals and psychiatric facilities shall be assessed under subdivision (1) of this subsection.
  2. Each hospital shall be notified in writing by the Department of the assessment made pursuant to this section. If no hospital submits a request for reconsideration under section 1958 of this title, the assessment shall be considered final.
  3. Each hospital shall submit its assessment to the Department according to a payment schedule adopted by the Commissioner. Variations in payment schedules shall be permitted as deemed necessary by the Commissioner.
  4. Any hospital that fails to make a payment to the Department on or before the specified schedule, or under any schedule for delayed payments established by the Commissioner, shall be assessed not more than $1,000.00. The Commissioner may waive this late payment assessment provided for in this subsection for good cause shown by the hospital.

    Added 1991, No. 94 , § 1; amended 1993, No. 56 , § 1, eff. June 3, 1993; 1995, No. 5 , § 26, eff. March 3, 1995; 1995, No. 14 , § 2, eff. April 12, 1995; 1997, No. 59 , §§ 69, 70, eff. June 30, 1997; 1999, No. 49 , § 199; 2001, No. 65 , § 13; 2003, No. 66 , § 306, see effective date note set out below; 2003, No. 163 (Adj. Sess.), § 7; 2005, No. 71 , § 285; 2007, No. 190 (Adj. Sess.), § 47, eff. June 6, 2008; 2009, No. 156 (Adj. Sess.), § E.309.4; 2011, No. 45 , § 24, eff. May 24, 2011; 2011, No. 128 (Adj. Sess.), § 36.

History

Revision note. In the second sentence of subsec. (b), substituted "section 1958" for "section 2638" to conform reference to redesignation of that section.

Amendments--2011 (Adj. Sess.) Subdiv. (a)(1): Added "Beginning July 1, 2012" and deleted "through September 30, 2011. Beginning October 1, 2011, each hospital's assessment, except for hospitals assessed under subdivision (2) of this subsection, shall be 5.9 percent of its net patient revenues (less chronic, skilled, and swing bed revenues)." at the beginning of the subdivision.

Amendments--2011. Subdiv. (a)(1): Amended generally.

Amendments--2009 (Adj. Sess.) Subdiv. (a)(1): Deleted "Beginning January 1, 2008" preceding "each hospital's" and substituted "commissioner of Vermont health access" for "director" in the first sentence, and deleted "third" preceding "most recent" and added "for which data has been reported to the department of banking, insurance, securities, and health care administration" in the second sentence.

Subsec. (b): Substituted "department" for "office" in the first sentence.

Subsec. (c): Substituted "department" for "office" and "commissioner" for "director" in two places.

Subsec. (d): Substituted "department" for "office" and "commissioner" for "director" in two places.

Subsec. (e): Deleted.

Amendments--2007 (Adj. Sess.). Subdiv. (a)(1): Substituted "January 1, 2008" for "July 1, 2005" and "5.5" for "6.0" preceding "percent" in the first sentence.

Amendments--2005. Subdiv. (a)(1): Substituted "2005" for "2004", "6.0" for "4.54", and "hospital's" for "most recent completed hospital"; inserted "annually" following "determined"; substituted "director" for "commissioner"; deleted "before December 1 of the previous year" following "administration"; and added the second sentence.

Subsec. (b): Substituted "office" for "department".

Subsec. (c): Substituted "office" for "department" and "director" for "commissioner".

Subsec. (d): Substituted "office" for "department" and "director" for "commissioner".

Amendments--2003 (Adj. Sess.). Subdiv. (a)(1): Substituted "2004" for "2003" and "4.54 percent" for "4.50 percent".

Subdiv. (a)(2): Substituted "July 1, 2004" for "April 1, 2003" and "4.21 percent" for "3.80 percent", and added the proviso in the first sentence, and added the second sentence.

Amendments--2003. Subsec. (a): Amended generally.

Amendments--2001. In the first sentence of subsec. (a), substituted "2001" for "1997", inserted "annual" preceding "assessment","3.60" for "3.30", and "reports and other data filed with the department of banking, insurance, securities, and health care administration before December 1 of the previous year" for "statements" following "financial".

Amendments--1999. Subsec. (a): Substituted "3.30" for "3.49" in the first sentence.

Amendments--1997 Subsec. (a): Rewrote the first sentence.

Subsec. (e): Repealed.

Amendments--1995 Subsec. (a): Act No. 5 substituted "year" for "years" following "fiscal" and deleted "and 1994" following "1993" in the first sentence and added the second sentence.

Act No. 14 substituted "year" for "years" preceding "beginning", "July 1, 1994" for "July 1, 1993 and 1994" thereafter, and "4.02" for "two" preceding "percent" in the first sentence.

Amendments--1993. Subsec. (a): Amended generally.

Subsec. (c): Inserted "payment" preceding "schedule" and deleted "providing for at least monthly installments" following "commissioner" in the first sentence.

Subsec. (e): Added.

Repeal of sunset. 2005, No. 71 , § 290(b) provides: "Sec. 4 of No. 56 of the Acts of 1993, as amended by Sec. 11 of No. 14 of the Acts of 1995, Sec. 71 of No. 59 of the Acts of 1997, Sec. 198 of No. 49 of the Acts of 1999, Sec. 17 of No. 65 of the Acts of 2001, and Sec. 312 of No. 66 of the Acts of 2003 (sunset of hospital assessment), is repealed."

Waiver for hospital assessments that exclude mental hospitals. 1991, No. 253 (Adj. Sess.), § 11(b), eff. June 12, 1992, provided in part that as soon as possible after passage of the act, the secretary of human services shall submit an application for a waiver to the Secretary of the United States Department of Health and Human Services, pursuant to section 1903(w)(3)(E)(i) of the Social Security Act, which is codified as 42 U.S.C. § 1396b(w)(3)(E)(i), treating hospital assessments that exclude mental hospitals as broad-based health care related taxes for the purposes of federal financial participation.

§ 1954. Nursing home assessment.

  1. Beginning July 1, 2011, each nursing home's annual assessment shall be $4,509.57, and beginning October 1, 2011, $4,919.53 per bed licensed pursuant to section 7105 of this title on June 30 of the immediately preceding fiscal year. The annual assessment for each bed licensed as of the beginning of the fiscal year shall be prorated for the number of days during which the bed was actually licensed and any overpayment shall be refunded to the facility. To receive the refund, a facility shall notify the Commissioner in writing of the size of the decrease in the number of its licensed beds and dates on which the beds ceased to be licensed.
  2. The Department shall provide written notification of the assessment amount to each nursing home. The assessment amount determined shall be considered final unless the home requests a reconsideration. Requests for reconsideration shall be subject to the provisions of section 1958 of this title.
  3. Each nursing home shall submit its assessment to the Department according to a schedule adopted by the Commissioner. The Commissioner may permit variations in the schedule of payment as deemed necessary.
  4. Any nursing home that fails to make a payment to the Department on or before the specified schedule, or under any schedule of delayed payments established by the Commissioner, shall be assessed not more than $1,000.00. The Commissioner may waive the late-payment assessment provided for in this subsection for good cause shown by the nursing home.

    Added 1991, No. 94 , § 1; amended 1991, No. 253 (Adj. Sess.), § 4; 1993, No. 56 , § 1, eff. June 3, 1993; 1995, No. 5 , § 27, eff. March 9, 1995; 1995, No. 14 , § 3, eff. April 12, 1995; 1999, No. 49 , § 202; 2001, No. 65 , § 14; 2001, No. 142 (Adj. Sess.), § 120a; 2001, No. 143 (Adj. Sess.), § 49, eff. June 21, 2002; 2003, No. 66 , § 307; 2003, No. 163 (Adj. Sess.), § 8; 2005, No. 71 , § 286; 2007, No. 76 , § 9, eff. June 7, 2007; 2007, No. 190 (Adj. Sess.), § 50, eff. June 6, 2008; 2009, No. 156 (Adj. Sess.), § I.54; 2011, No. 45 , § 25, eff. May 24, 2011.

History

Revision note. Substituted "June 30" for "June 31" in the first sentence of subsec. (a) to correct a typographical error.

In the third sentence of subsec. (b), substituted "section 1958" for "section 2638" to conform reference to the redesignation of that section.

2002. The text of this section is based on the harmonization of two amendments. During the 2001 Adjourned Session, this section was amended twice, by Act Nos. 142 and 143, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2001 Adjourned Session, the text of Act Nos. 142 and 143 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments--2011. Subsec. (a): In the first sentence, substituted "2011" for "2007", "$4,509.57" for "$4,322.90", and "October 1, 2011, $4,919.53" for "January 1, 2008, $3,962.66".

Amendments--2009 (Adj. Sess.) Substituted "commissioner" for "director" and "department" for "office" wherever it appeared throughout the section.

Amendments--2007 (Adj. Sess.). Subsec. (d): Deleted the former last sentence.

Amendments--2007. Subsec. (a): Substituted "2007" for "2005" following "beginning July 1" and "$4,322.90, and beginning January 1, 2008, $3,962.66" for "$3,787.79" following "shall be" in the first sentence.

Subsec. (d): Added the last sentence.

Amendments--2005. Section amended generally.

Amendments--2003 (Adj. Sess.). Subsec. (a): Amended generally.

Amendments--2003. Subsec. (a): Substituted "2003" for "2002" and "$3,388.25" for "$3,166.29".

Amendments--2001 (Adj. Sess.) Subsec. (a): Act Nos. 142 and 143 substituted "July 1, 2002" for "July 1, 2001" and "$3,166.29 per bed" for "$2,768.69 per bed", and Act No. 142 added the second and third sentences.

Amendments--2001. Subsec. (a): Substituted "2001" for "1999" and "$2,768.69" for "$1,534.25."

Amendments--1999 Subsec. (a): Substituted "beginning July 1, 1999" for "for the fiscal year, beginning July 1, 1993" and "$1,534.25" for "$800.00" in the first sentence and deleted the second sentence.

Amendments--1995 Subsec. (a): Act No. 5 substituted "year" for "years" preceding "beginning July 1, 1993" and deleted "and 1994" thereafter in the first sentence and added the second sentence.

Section amended generally by Act No. 14.

Amendments--1993. Subsec. (a): Amended generally.

Subsec. (c): Deleted "providing for at least monthly installments" following "commissioner" in the first sentence and "other" preceding "variations" in the second sentence.

Amendments--1991 (Adj. Sess.). Subsec. (a): Amended generally.

Repeal of sunset. 2005, No. 71 , § 290(a) provides: "Sec. 4 of No. 56 of the Acts of 1993, as amended by Sec. 11 of No. 14 of the Acts of 1995, Sec. 71 of No. 59 of the Acts of 1997, Sec. 198 of No. 49 of the Acts of 1999, Sec. 17 of No. 65 of the Acts of 2001, and Sec. 312 of No. 66 of the Acts of 2003 (sunset of hospital assessment and nursing home assessment), is repealed."

§ 1955. ICF/DD assessment.

  1. Beginning October 1, 2011, each ICF/DD's annual assessment shall be 5.9 percent of the ICF/DD's total annual direct and indirect expenses for the most recently settled ICF/DD audit.
  2. The Department shall provide written notification of the assessment amount to each ICF/DD. The assessment amount determined shall be considered final unless the facility requests a reconsideration. Requests for reconsideration shall be subject to the provisions of section 1958 of this title.
  3. Each ICF/DD shall remit its assessment to the Department according to a schedule adopted by the Commissioner. The Commissioner may permit variations in the schedule of payment as deemed necessary.
  4. Any ICF/DD that fails to make a payment to the Department on or before the specified schedule, or under any schedule of delayed payments established by the Commissioner, shall be assessed not more than $1,000.00. The Commissioner may waive the late-payment assessment provided for in this subsection for good cause shown by the ICF/DD.

    Added 1991, No. 94 , § 1; amended 1993, No. 56 , § 1, eff. June 3, 1993; 2005, No. 71 , § 287; 2007, No. 190 (Adj. Sess.), § 48, eff. June 6, 2008; 2009, No. 156 (Adj. Sess.), § I.55; 2011, No. 45 , § 26, eff. May 24, 2011; 2013, No. 96 (Adj. Sess.), § 208.

History

Revision note. In the third sentence of subsec. (b), substituted "section 1958" for "section 2683" to conform reference to redesignation of that section.

Amendments--2013 (Adj. Sess.). Substituted "ICF/DD" for "ICF/MR" in the section heading and throughout the section.

Amendments--2011. Subsec. (a): Substituted "October 1, 2011" for "January 1, 2008" and "5.9" for "5.5".

Amendments--2009 (Adj. Sess.) Subsecs. (b)-(d): Substituted "commissioner" for "director" and "department" for "office" wherever it appeared throughout the section.

Amendments--2007 (Adj. Sess.). Subsec. (a): Substituted "Beginning January 1, 2008, each" for "Each" and "5.5" for "six" preceding "percent" in the first sentence.

Amendments--2005. Subsec. (b): Substituted "office" for "department".

Subsec. (c): Substituted "office" for "department" and "director" for "commissioner".

Subsec. (d): Substituted "office" for "department", "director" for "commissioner", and "director may" for "commissioner shall".

Prior law. Former § 1955, relating to home health assessment, was derived from 1991, No. 94 , § 1 and repealed by 1991, No. 253 (Adj. Sess.), § 5.

§ 1955a. Home health agency assessment. Section 1955a repealed effective July 1, 2023.

    1. Each home health agency's assessment shall be 4.25 percent of its net patient revenues from home health services provided exclusively in Vermont. (a) (1)  Each home health agency's assessment shall be 4.25 percent of its net patient revenues from home health services provided exclusively in Vermont.
    2. On or before May 1 of each year, each home health agency shall provide to the Department a copy of its most recent audited financial statement prepared in accordance with generally accepted accounting principles. The amount of the tax shall be determined by the Commissioner based on the home health net patient revenue attributable to services reported on the agency's financial statement.
    3. For providers who began operations as a home health agency after January 1, 2005, the tax shall be assessed as follows:

      Until such time as the home health agency submits audited financial statements for its first full year of operation as a home health agency, the Commissioner, in consultation with the home health agency, shall annually estimate the amount of tax payable and shall prescribe a schedule for interim payments.

      At such time as the full-year audited financial statement is filed, the final assessment shall be determined, and the home health agency shall pay any underpayment or the Department shall refund any overpayment. The assessment for the State fiscal year in which a provider commences operations as a home health agency shall be prorated for the proportion of the State fiscal year in which the new home health agency was in operation.

  1. Each home health agency shall be notified in writing by the Department of the assessment made pursuant to this section. If no home health agency submits a request for reconsideration under section 1958 of this title, the assessment shall be considered final.
  2. Each home health agency shall submit its assessment to the Department according to a payment schedule adopted by the Commissioner. Variations in payment schedules shall be permitted as deemed necessary by the Commissioner.
  3. Any home health agency that fails to make a payment to the Department on or before the specified schedule, or under any schedule for delayed payments established by the Commissioner, shall be assessed not more than $1,000.00. The Commissioner may waive the late-payment assessment provided for in this subsection for good cause shown by the home health agency.

    Added 1999, No. 49 , § 203; amended 2001, No. 65 , § 15; 2003, No. 66 , § 309; 2005, No. 71 , § 288; 2009, No. 47 , § 15; 2009, No. 156 (Adj. Sess.), § I.56; 2011, No. 45 , § 23, eff. May 24, 2011; 2013, No. 73 , § 55, eff. July 1, 2005, eff. June 5, 2013; 2017, No. 73 , § 18a, eff. June 13, 2017; repealed on July 1, 2023 by 2021, No. 73 § 13.

History

Amendments--2017. Subsec. (a): Amended generally.

Amendments--2013 Subsec. (a): Added "; provided, however, that each home health agency's annual assessment shall be limited to no more than six percent of its annual net patient revenue" to the end of the first sentence; substituted "May 1" for "December 1" in the second sentence.

Amendments--2011. Subsec. (a): Substituted "October 1, 2011" for "July 1, 2009" and "19.30" for "17.69" in the first sentence.

Amendments--2009 (Adj. Sess.) Substituted "commissioner" for "director" and "department" for "office" wherever it appeared throughout the section.

Amendments--2009. Subsec. (a): Substituted "2009" for "2005" and "17.69" for "18.45".

Amendments--2005. Section amended generally.

Amendments--2003. Subsec. (a): Substituted "July 1, 2003" for "July 1, 2001" and "16.0" for "12.9" preceding "percent".

Amendments--2001. Subsec. (a): Substituted "2001" for "1999" and "12.9" for "7.3375" in the first sentence and "December 1" for "May 31" in the second sentence.

Repeal of sunset. 2005, No. 71 , § 290(a) provides: "Sec. 205 of No. 49 of the Acts of 1999, as amended by Sec. 18 of No. 65 of the Acts of 2001 and Sec. 311 of No. 66 of the Acts of 2003 (sunset of home health agency assessment), is repealed."

Prospective repeal of section. 2021, No. 73 , § 13 provides that this section shall be repealed on July 1, 2023. Previously, 2017, No. 73 , § 18d had provided for the repeal of this section on July 1, 2019, and 2019, No. 71 , § 22 had extended the date of that repeal to July 1, 2021.

§ 1955b. Pharmacy assessment.

  1. Beginning July 1, 2005, each pharmacy's monthly assessment shall be $0.10 for each prescription filled and refilled.
  2. Each pharmacy shall declare and provide supporting documentation to the Commissioner of the total number of prescriptions filled and refilled in the previous month and remit the assessment due for that month. The declaration and payment shall be due by the end of the following month.
  3. Each pharmacy shall submit its assessment payment to the Department monthly. Variations in payment timing shall be permitted as deemed necessary by the Commissioner.
  4. Any pharmacy that fails to pay an assessment to the Department on or before the due date shall be assessed a late payment penalty of two percent of the assessment amount for each month it remains unpaid; but late payment penalties for any one quarter shall not exceed $500.00. The Commissioner may waive a penalty under this subsection for good cause shown by the pharmacy, as determined by the Commissioner in his or her discretion.

    Added 2005, No. 71 , § 289; amended 2009, No. 156 (Adj. Sess.), § I.57.

History

Amendments--2009 (Adj. Sess.) Substituted "commissioner" for "director" and "department" for "office" wherever it appeared throughout the section.

§ 1956. Proceeds from assessments.

All assessments, including late-payment assessments, from health care providers under this subchapter shall be deposited in the General Fund. No provision of this subchapter shall permit the State to reduce the level of State funds expended on the nursing home Medicaid program in any fiscal year below the level expended in fiscal year 1991 from the General Fund for the nursing home Medicaid program.

Added 1991, No. 94 , § 1; amended 1991, No. 253 (Adj. Sess.), § 6; 1993, No. 56 , § 1, eff. June 3, 1993; 1995, No. 14 , § 4, eff. April 12, 1995; 1995, No. 174 (Adj. Sess.), § 3; 1999, No. 49 , § 204; 1999, No. 147 (Adj. Sess.), § 4; 2001, No. 63 , § 99a; 2001, No. 65 , § 16; 2001, No. 143 (Adj. Sess.), § 50, eff. June 21, 2002; 2003, No. 66 , § 310; 2003, No. 163 (Adj. Sess.), § 9; 2005, No. 71 , § 291; 2005, No. 215 (Adj. Sess.), § 313; 2019, No. 6 , § 76, eff. April 22, 2019.

History

Revision note. Redesignated former subsecs. (c) and (d) as present subsecs. (d) and (e) in light of 1999, No. 49 , § 204, which added present subsec. (c).

References to "chapter" in subsecs. (a)-(c), (e), and (f) changed to "subchapter" for purposes of clarity in view of the redesignation of chapter 29 of this title, as added by 1991, No. 94 , § 1, as this subchapter.

In subsec. (b), substituted "subsection 1952(c)" for "subsection 2632(c)" to conform reference to the redesignation of that section.

Amendments--2019. Substituted "General Fund" for "State Health Care Resources Fund established in section 1901d of this title" following "deposited in" in the first sentence.

Amendments--2005 (Adj. Sess.). Deleted the former first two sentences, which pertained to the abolishment of the health care trust fund and deposit of remaining assets into the Vermont health access trust fund, and substituted "state health care resources fund" for "Vermont health access trust fund" and "section 1901d" for "section 1972".

Amendments--2005. Section amended generally.

Amendments--2003 (Adj. Sess.). Subsec. (b): Deleted "$3,388.25" preceding "per bed annual assessment" and inserted "under subsection 1954(a) of this title" following "nursing homes" in the second sentence.

Amendments--2003. Subsec. (b): Substituted "$3,388.25" for "$3,166.29".

Amendments--2001 (Adj. Sess.) Subsec. (b): Substituted "$3,166.29" for "$2,768.69".

Amendments--2001. Subsec. (b): Act Nos. 63 and 65 substituted "$2,768.69" for "$1,534.25", and "$1,768.69 per bed, less the total amount of the state share of the inflation factor adjustments for state fiscal year 2002, as calculated by the division of rate setting pursuant to subsection 905(c) of this title" for "$534.25" in the introductory paragraph.

Subdiv. (b)(1): Act No. 63 substituted "2002" for "2000" in the first sentence and added the fourth sentence.

Subsec. (e): Act Nos. 63 and 65 inserted "the department of aging and disabilities" following "health access".

Amendments--1999 (Adj. Sess.). Subsec. (e): Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare".

Amendments--1999. Subsec. (b): Amended generally.

Subsec (c): Added.

Amendments--1995 (Adj. Sess.) Subsec. (d): Substituted "department of developmental and mental health services" for "department of mental health and mental retardation".

Amendments--1995 Subsec. (a): Added the third sentence.

Subsec. (b): Added the second sentence.

Amendments--1993. Substituted "health care providers" for "hospitals and nursing homes" following "assessments, from" in the second sentence of subsec. (a), deleted former subsec. (c), redesignated former subsecs. (d) and (e) as subsecs. (c) and (d), respectively, and inserted "and the department of mental health and mental retardation" following "social welfare", and substituted "departments' " for "department's" preceding "Medicaid" and "departments" for "department" preceding "to carry" in subsec. (d).

Amendments--1991 (Adj. Sess.). Deleted "improvement" preceding "trust" in the section heading and the first sentence of subsec. (a), inserted "and" preceding "nursing homes" and deleted "and home health agencies" thereafter in the second sentence, and deleted "and the amount that has been used for the state portion of payments to hospitals, nursing homes and home health agencies" following "any time" in the fourth sentence of that subsec.; rewrote subsec. (b); inserted "until September 30, 1992" preceding "an amount" and "for hospitals" following "reserve", deleted "at least annually" preceding "sufficient" and "nursing home and home health agency" preceding "receives", substituted "after which date no hold harmless payments shall be made" for "nursing home or home health agency" following "assessment of that hospital" in subsec. (c); deleted former subsec. (d); redesignated former subsecs. (e) and (f) as subsecs. (d) and (e), respectively; and deleted "improvement" preceding "trust" in new subsec. (e).

Retroactive effective date--2019 amendment 2019, No. 6 , § 105(a), provides that notwithstanding 1 V.S.A. § 214, the amendment to this section by that act shall take effect on passage and apply retroactively to July 1, 2018.

§ 1957. Audits.

The Commissioner may require the submission of audited information as needed from health care providers to determine that amounts received from health care providers were correct. If an audit identifies amounts received due to errors by the Department, the Commissioner shall make payments to any health care provider that the audit reveals paid amounts it should not have been required to pay. Payments made under this section shall be made from the Fund.

Added 1991, No. 94 , § 1; amended 1991, No. 253 (Adj. Sess.), § 7; 1993, No. 56 , § 1, eff. June 3, 1993; 2005, No. 71 , § 292; 2009, No. 156 (Adj. Sess.), § I.58.

History

Revision note. In the third sentence, substituted "section" for " subsection" to correct an error in the reference.

Amendments--2009 (Adj. Sess.) Substituted "commissioner" for "director" and "department" for "office" wherever it appeared throughout the section.

Amendments--2005. Substituted "director" for "commissioner" and "office" for "department".

Amendments--1993. Substituted "health care providers" for "hospitals and nursing homes" preceding "to determine" and following "received from" in the first sentence and "health care provider" for "hospital or nursing home" following "payments to any" in the second sentence.

Amendments--1991 (Adj. Sess.). In the first sentence inserted "and" preceding "nursing home" and deleted "and home health agencies" thereafter in two places, and, in the second sentence, inserted "or" preceding "nursing home" and deleted "and home health agency" thereafter.

§ 1958. Appeals.

  1. Any health care provider may submit a written request to the Department for reconsideration of the determination of the assessment within 20 days of notice of the determination. The request shall be accompanied by written materials setting forth the basis for reconsideration. If requested, the Department shall hold a hearing within 90 days from the date on which the reconsideration request was received. The Department shall mail written notice of the date, time, and place of the hearing to the health care provider at least 30 days before the date of the hearing. On the basis of the evidence submitted to the Department or presented at the hearing, the Department shall reconsider and may adjust the assessment. Within 20 days following the hearing, the Department shall provide notice in writing to the health care provider of the final determination of the amount it is required to pay based on any adjustments made by it. Proceedings under this section are not subject to the requirements of 3 V.S.A. chapter 25.
  2. Upon request, the Commissioner shall enter into nonbinding arbitration with any health care provider dissatisfied with the Department's decision regarding the amount it is required to pay. The arbitrator shall be selected by mutual consent, and compensation shall be provided jointly.
  3. Any health care provider may appeal the decision of the Department as to the amount it is required to pay either before or after arbitration, to the Superior Court having jurisdiction over the health care provider.

    Added 1991, No. 94 , § 1; amended 1991, No. 253 (Adj. Sess.), § 8; 1993, No. 56 , § 1, eff. June 3, 1993; 2005, No. 71 , § 293; 2009, No. 156 (Adj. Sess.), § I.59; 2017, No. 210 (Adj. Sess.), § 4, eff. June 1, 2018.

History

Amendments--2017 (Adj. Sess.). Subsec. (a): Substituted "90 days" for "20 days" in the third sentence, "30 days" for "10 days" in the fourth sentence, and "following" for "of" following "20 days" in the sixth sentence.

Amendments--2009 (Adj. Sess.) Substituted "commissioner" for "director" and "department" for "office" wherever it appeared throughout the section.

Amendments--2005. Subsec. (a): Substituted "office" for "department" throughout the subsection.

Subsec. (b): Substituted "director" for "commissioner" and "office's" for "department's".

Subsec. (c): Substituted "office" for "department".

Amendments--1993. Substituted "health care provider" for "hospital or nursing home" wherever it appeared.

Amendments--1991 (Adj. Sess.). Inserted "or" preceding "nursing home" and deleted "or home health agency" thereafter in the first, fourth, and sixth sentences of subsec. (a), the first sentence of subsec. (b), and in two places in subsec. (c), and added the seventh sentence of subsec. (a).

§ 1959. Ambulance agency assessment.

    1. The annual assessment for each ambulance agency shall be 3.3 percent of the ambulance agency's annual net patient revenues for services delivered to patients in Vermont during the most recent annual fiscal period. As used in this section, "net patient revenues" means the total amount of payments an ambulance agency received during the fiscal period from Medicaid, Medicare, commercial insurance, and all other payers as payment for services rendered. The term does not include municipal appropriations, donations from any source, or any other funding unrelated to the delivery of health care services. (a) (1)  The annual assessment for each ambulance agency shall be 3.3 percent of the ambulance agency's annual net patient revenues for services delivered to patients in Vermont during the most recent annual fiscal period. As used in this section, "net patient revenues" means the total amount of payments an ambulance agency received during the fiscal period from Medicaid, Medicare, commercial insurance, and all other payers as payment for services rendered. The term does not include municipal appropriations, donations from any source, or any other funding unrelated to the delivery of health care services.

    The Department shall determine the appropriate fiscal period as necessary to ensure compliance with federal law.

    (3) Ambulance agencies shall remit the assessment amount to the Department annually on or before June 1.

  1. The Department shall provide written notification of the assessment amount to each ambulance agency. The assessment amount determined shall be considered final unless the agency requests reconsideration. Requests for reconsideration shall be subject to the provisions of section 1958 of this title.
  2. Each ambulance agency shall remit its assessment to the Department according to a schedule adopted by the Commissioner. The Commissioner may permit variations in the schedule of payment as deemed necessary.
  3. Any ambulance agency that fails to make a payment to the Department on or before the specified schedule, or under any schedule of delayed payments established by the Commissioner, shall be assessed not more than $1,000.00. The Commissioner may waive the late-payment assessment provided in this subsection for good cause shown by the ambulance agency.

    Added 2015, No. 134 (Adj. Sess.), § 30; amended 2017, No. 73 , § 9, eff. June 13, 2017; 2017, No. 210 (Adj. Sess.), § 5, eff. June 1, 2018.

History

Amendments--2017 (Adj. Sess.). Subdiv. (a)(3): Substituted "June 1" for "March 31, beginning with March 31, 2017" following "before".

Amendments--2017. Subsec. (a): Added the subdiv. (1) through (3) designations and added the second and third sentences in subdiv. (1).

Effective date and applicability of subdiv. (a)(3). 2017, No. 210 (Adj. Sess.), § 16(1) provides that Sec. 5 [which amended this section] shall take effect on passage [June 1, 2018] and shall apply retroactively to January 1, 2018.

Ambulance provider tax; intent. 2015, No. 134 (Adj. Sess.), § 31 provides: "In establishing a provider tax on ambulance agencies, it is the intent of the General Assembly to increase Medicaid reimbursement rates to these providers while ensuring full compliance with 42 C.F.R. § 433.68."

Subchapter 3. Vermont Health Access Plan

History

Amendments--2005 (Adj. Sess.). 2005, No. 215 (Adj. Sess.), § 319, substituted "Plan" for "Trust Fund" in the subchapter heading.

§§ 1971 Repealed. 2011, No. 171 (Adj. Sess.), § 41(h), effective January 1, 2014.

History

Former § 1971. Former § 1971, relating to definitions, was derived from 1995, No. 14 , § 9 and amended by 2005, No. 71 , § 294; 2005, No. 215 (Adj. Sess.), § 310; 2007, No. 70 , § 8; and 2009, No. 156 (Adj. Sess.), § I.60.

§ 1972. Repealed. 2005, No. 93 (Adj. Sess.), § 16.

History

Former § 1972. Former § 1972, relating to the establishment of the Vermont Health Access Trust Fund, was derived from 1995, No. 14 , § 9 and amended by 1995, No. 180 (Adj. Sess.), § 38(a); 2001, No. 142 (Adj. Sess.), § 148e; 2005, No. 71 , § 295.

§§ 1973, 1974. Repealed. 2011, No. 171 (Adj. Sess.), § 41(h), effective January 1, 2014.

History

Former §§ 1973, 1974. Former § 1973, relating to the Vermont Health Access Plan, was derived from 2003, No. 122 (Adj. Sess.), § 133 and amended by 2005, No. 174 (Adj. Sess.), § 99; 2007, No. 70 , § 9; 2007, No. 174 (Adj. Sess.), § 23; No. 204 (Adj. Sess.), § 8; 2009, No. 61 , § 25; and 2009, No. 1 (Sp. Sess.), § E.307.2.

Former § 1974, relating to employer-sponsored insurance and premium assistance, was derived from 2005, No. 191 (Adj. Sess.), § 13 and amended by 2007, No. 70 , §§ 10-14l; No. 71, § 12; 2007, No. 174 (Adj. Sess.), § 24; No. 192 (Adj. Sess.), § 6.016.1; No. 203 (Adj. Sess.), § 9; 2009, No. 61 , § 20; and 2011, No. 63 , § G.106.

Subchapter 3A. Catamount Health Assistance Program

§§ 1981-1985. Repealed. 2013, No. 79, § 52(c), effective January 1, 2014.

History

Former §§ 1981-1985. Former § 1981, relating to policy and purpose of the Catamount Health Assistance Program, was derived from 2005, No. 191 (Adj. Sess.), § 16.

Former § 1982, relating to definitions for the Catamount Health Assistance Program, was derived from 2005, No. 191 (Adj. Sess.), § 16 and amended by 2007, No. 70 , § 15; 2007, No. 174 (Adj. Sess.), § 25; and 2007, No. 203 (Adj. Sess.), § 10.

Former § 1983, relating to eligibility for the Catamount Health Assistance Program, was derived from 2005, No. 191 (Adj. Sess.), § 16 and amended by 2007, No. 70 , §§ 16-18 and 2007, No. 203 (Adj. Sess.), § 7.

Former § 1984, relating to individual contributions to the Catamount Health Assistance Program, was derived from 2005, No. 191 (Adj. Sess.), § 16 and amended by 2007, No. 71 , § 3; 2007, No. 192 (Adj. Sess.), § 6.016; 2009, No. 61 , § 21; 2009, No. 156 (Adj. Sess.), §§ E.309.7, E.309.8; and 2011, No. 63 , § E.307.1.

Former § 1985, relating to administration of the Catamount Health Assistance Program, was derived from 2005, No. 191 (Adj. Sess.), § 16 and amended by 2007, No. 70 , § 19.

§ 1986. Repealed. 2011, No. 75 (Adj. Sess.), § 83.

History

Former § 1986. Former § 1986, relating to the Catamount Fund, was derived from 2005, No. 191 (Adj. Sess.), § 16; and amended by 2007, No. 65 , § 388; No. 71, § 11 and 2011, No. 45 , § 36n.

Subchapter 4. Coverage for Dental Services

History

Former subchapter 4. Former subchapter 4, comprising §§ 1991-1996 and relating to pharmaceutical assistance to elderly and disabled Vermonters, was derived from 1989, No, 48, § 1 and repealed by 2005, No. 71 , § 321(a), eff. January 1, 2006.

§ 1991. Definitions.

As used in this chapter:

  1. "Dental hygienist" means an individual licensed to practice as a dental hygienist under 26 V.S.A. chapter 12.
  2. "Dental services" means preventive, diagnostic, or corrective procedures related to the teeth and associated structures of the oral cavity.
  3. "Dental therapist" means an individual licensed to practice as a dental therapist under 26 V.S.A. chapter 12.
  4. "Dentist" means an individual licensed to practice dentistry under 26 V.S.A. chapter 12.

    Added 2019, No. 72 , § E.306.1.

History

Former § 1991. Former § 1991, relating to pharmaceutical assistance to elderly and disabled Vermonters; definitions, was derived from 1989, No. 48 , § 1; amended by 1999, No. 62 , § 122 and 1999, No. 147 (Adj. Sess.), § 4; and repealed by 2005, No. 71 , § 321(a), eff. January 1, 2006.

§ 1992. Medicaid coverage for adult dental services.

  1. Vermont Medicaid shall provide coverage for medically necessary dental services provided by a dentist, dental therapist, or dental hygienist working within the scope of the provider's license as follows:
    1. Up to two visits per calendar year for preventive services, including prophylaxis and fluoride treatment, with no co-payment. These services shall not be counted toward the annual maximum benefit amount set forth in subdivision (2) of this subsection.
    2. Diagnostic, restorative, and endodontic procedures, to a maximum of $1,000.00 per calendar year, provided that the Department of Vermont Health Access may approve expenditures in excess of that amount when exceptional medical circumstances so require.
    3. Other dental services as determined by the Department by rule.
  2. The Department of Vermont Health Access shall develop a reimbursement structure for dental services in the Vermont Medicaid program that encourages dentists, dental therapists, and dental hygienists to provide preventive care.

    Added 2019, No. 72 , § E.306.1.

History

Former § 1992. Former § 1992, relating to pharmaceutical assistance to elderly and disabled Vermonters; establishment of program, was derived from 1989, No. 48 , § 1; amended by 1989, No. 219 (Adj. Sess.), § 9(a); 1999, No. 62 , § 123; and 1999, No. 147 (Adj. Sess.), § 4; and repealed by 2005, No. 71 , § 321(a), eff. January 1, 2006.

§§ 1992a-1996. Repealed. 2005, No. 71, § 321(a), eff. January 1, 2006.

History

Former §§ 1992a-1996. Former § 1992a, relating to over-the-counter-drug coverage, was derived from 2003, No. 122 (Adj. Sess.), § 128d.

Former § 1993, relating to eligibility for assistance, was derived from 1989, No. 48 , § 1 and amended by 1999, No. 62 , § 123a and 1999, No. 152 (Adj. Sess.), § 275.

Former § 1994, relating to co-payment; coinsurance and other cost-sharing; enrollment, was derived from 1989, No. 48 , § 1 and amended by 1999, No. 62 , § 123b and 1999, No. 147 (Adj. Sess.), § 4.

Former § 1995, relating to construction, was derived from 1989, No. 48 , § 1.

Former § 1996, relating to the Vermont prescription drug pricing and consumer protection program, was derived from 1999, No. 51 , § 2 and amended by 1999, No. 147 (Adj. Sess.), § 4.

Subchapter 5. Prescription Drug Cost Containment

§ 1997. Definitions.

As used in this subchapter:

  1. "Board" or "Drug Utilization Review Board" means the Drug Utilization Review Board established in connection with the Medicaid program.
  2. "Commissioner" means the Commissioner of Vermont Health Access.
  3. "Health benefit plan" means a health benefit plan with prescription drug coverage offered or administered by a health insurer, as defined by 18 V.S.A. § 9402 , and the out-of-state counterparts to such plans. The term includes:
    1. any State public assistance program with a health benefit plan that provides coverage of prescription drugs;
    2. any health benefit plan offered by or on behalf of the State of Vermont or any instrumentality of the State providing coverage for government employees and their dependents that agrees to participate in the Program; and
    3. any insured or self-insured health benefit plan that agrees to participate in the Program.
  4. "Department" means the Department of Vermont Health Access.
  5. "Participating health benefit plan" means a health benefit plan that has agreed to participate in one or more components of the Pharmacy Best Practices and Cost Control Program.
  6. "Program" or "the Pharmacy Best Practices and Cost Control Program" means the Pharmacy Best Practices and Cost Control Program established by this subchapter.
  7. "State public assistance program" includes the Medicaid program, VPharm, the State Children's Health Insurance Program, the State of Vermont AIDS Medication Assistance Program, the General Assistance program, the Pharmacy Discount Plan Program, and the out-of-state counterparts to such programs.

    Added 2001, No. 127 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2005, No. 174 (Adj. Sess.), § 100; 2009, No. 156 (Adj. Sess.), § I.61; 2013, No. 79 , § 25, eff. Jan. 1, 2014.

History

2013. In subdiv. (3), deleted ", but is not limited to" following "includes" in accordance with 2013, No. 5 , § 4.

- 2008. In subdiv. (3), deleted the subdivision cross-reference to 18 V.S.A. § 9402 relating to the definition for "health insurer" in order to correct the cross-reference.

Amendments--2013. Subdiv. (7): Deleted ", but is not limited to" following "includes", "the Vermont health access plan" following "Medicaid program" and "VermontRx" following "VPharm".

Amendments--2009 (Adj. Sess.) Subdiv. (2): Substituted "commissioner" for "director".

Subdiv. (4): Substituted ""department" for "office".

Amendments--2005 (Adj. Sess.). Section amended generally.

§ 1998. Pharmacy Best Practices and Cost Control Program established.

  1. The Commissioner of Vermont Health Access shall establish and maintain a Pharmacy Best Practices and Cost Control Program designed to reduce the cost of providing prescription drugs, while maintaining high quality in prescription drug therapies. The Program shall include:
    1. use of an evidence-based preferred list of covered prescription drugs that identifies preferred choices within therapeutic classes for particular diseases and conditions, including generic alternatives and over-the-counter drugs;
    2. utilization review procedures, including a prior authorization review process;
    3. any strategy designed to negotiate with pharmaceutical manufacturers to lower the cost of prescription drugs for Program participants, including a supplemental rebate program;
    4. alternative pricing mechanisms, including consideration of using maximum allowable cost pricing for generic and other prescription drugs;
    5. alternative coverage terms, including consideration of providing coverage of over-the-counter drugs where cost-effective in comparison to prescription drugs, and authorizing coverage of dosages capable of permitting the consumer to split each pill if cost-effective and medically appropriate for the consumer;
    6. a simple, uniform prescription form, designed to implement the preferred drug list, and to enable prescribers and consumers to request an exception to the preferred drug list choice with a minimum of cost and time to prescribers, pharmacists, and consumers;
    7. a joint pharmaceuticals purchasing consortium as provided for in subdivision (c)(1) of this section; and
    8. any other cost containment activity adopted, by rule, by the Commissioner that is designed to reduce the cost of providing prescription drugs while maintaining high quality in prescription drug therapies.
  2. The Commissioner shall implement the Pharmacy Best Practices and Cost Control Program for Medicaid and all other State public assistance program health benefit plans to the extent permitted by federal law.
    1. The Commissioner may implement the Pharmacy Best Practices and Cost Control Program for any other health benefit plan within or outside this State that agrees to participate in the Program. For entities in Vermont, the Commissioner shall directly or by contract implement the Program through a joint pharmaceuticals purchasing consortium. The joint pharmaceuticals purchasing consortium shall be offered on a voluntary basis no later than January 1, 2008, with mandatory participation by State or publicly funded, administered, or subsidized purchasers to the extent practicable and consistent with the purposes of this chapter, by January 1, 2010. If necessary, the Department of Vermont Health Access shall seek authorization from the Centers for Medicare and Medicaid to include purchases funded by Medicaid. "State or publicly funded purchasers" shall include the Department of Corrections, the Department of Mental Health, Medicaid, Dr. Dynasaur, VPharm, Healthy Vermonters, workers' compensation, and any other State or publicly funded purchaser of prescription drugs. (c) (1)  The Commissioner may implement the Pharmacy Best Practices and Cost Control Program for any other health benefit plan within or outside this State that agrees to participate in the Program. For entities in Vermont, the Commissioner shall directly or by contract implement the Program through a joint pharmaceuticals purchasing consortium. The joint pharmaceuticals purchasing consortium shall be offered on a voluntary basis no later than January 1, 2008, with mandatory participation by State or publicly funded, administered, or subsidized purchasers to the extent practicable and consistent with the purposes of this chapter, by January 1, 2010. If necessary, the Department of Vermont Health Access shall seek authorization from the Centers for Medicare and Medicaid to include purchases funded by Medicaid. "State or publicly funded purchasers" shall include the Department of Corrections, the Department of Mental Health, Medicaid, Dr. Dynasaur, VPharm, Healthy Vermonters, workers' compensation, and any other State or publicly funded purchaser of prescription drugs.
    2. The Commissioner of Vermont Health Access and the Secretary of Administration shall take all steps necessary to enable Vermont's participation in joint prescription drug purchasing agreements with any other health benefit plan or organization within or outside this State that agrees to participate with Vermont in such joint purchasing agreements.
    3. The Commissioner of Human Resources shall take all steps necessary to enable the State of Vermont to participate in joint prescription drug purchasing agreements with any other health benefit plan or organization within or outside this State that agrees to participate in such joint purchasing agreements, as may be agreed to through the bargaining process between the State of Vermont and the authorized representatives of the employees of the State of Vermont.
    4. The actions of the Commissioners and the Secretary shall include:
      1. active collaboration with the National Legislative Association on Prescription Drug Prices;
      2. active collaboration with the Pharmacy RFP Issuing States initiative organized by the West Virginia Public Employees Insurance Agency;
      3. the execution of any joint purchasing agreements or other contracts with any participating health benefit plan or organization within or outside the State that the Commissioner of Vermont Health Access determines will lower the cost of prescription drugs for Vermonters while maintaining high quality in prescription drug therapies; and
      4. with regard to participation by the State Employees Health Benefit Plan, the execution of any joint purchasing agreements or other contracts with any health benefit plan or organization within or outside the State that the Commissioner of Vermont Health Access determines will lower the cost of prescription drugs and provide overall quality of integrated health care services to the State Employees Health Benefit Plan and the beneficiaries of the Plan, and that is negotiated through the bargaining process between the State of Vermont and the authorized representatives of the employees of the State of Vermont.
    5. The Commissioners of Human Resources and of Vermont Health Access may renegotiate and amend existing contracts to which the Departments of Vermont Health Access and of Human Resources are parties if such renegotiation and amendment will be of economic benefit to the health benefit plans subject to such contracts, and to the beneficiaries of such plans. Any renegotiated or substituted contract shall be designed to improve the overall quality of integrated health care services provided to beneficiaries of such plans.
    6. [Repealed.]
    7. The Commissioner of Vermont Health Access, the Commissioner of Human Resources, the Commissioner of Financial Regulation, and the Secretary of Human Services shall establish a collaborative process with the Vermont Medical Society, pharmacists, health insurers, consumers, employer organizations and other health benefit plan sponsors, the National Legislative Association on Prescription Drug Prices, pharmaceutical manufacturer organizations, and other interested parties designed to consider and make recommendations to reduce the cost of prescription drugs for all Vermonters.
  3. A participating health benefit plan other than a State public assistance program may agree with the Commissioner to limit the plan's participation to one or more program components. The Commissioner shall supervise the implementation and operation of the Pharmacy Best Practices and Cost Control Program, including developing and maintaining the preferred drug list, to carry out the provisions of the subchapter. The Commissioner may include such insured or self-insured health benefit plans as agree to use the preferred drug list or otherwise participate in the provisions of this subchapter. The purpose of this subchapter is to reduce the cost of providing prescription drugs while maintaining high quality in prescription drug therapies.
  4. The Commissioner of Vermont Health Access shall develop procedures for the coordination of State public assistance program health benefit plan benefits with pharmaceutical manufacturer patient assistance programs offering free or low cost prescription drugs, including the development of a proposed single application form for such programs. The Commissioner may contract with a nongovernmental organization to develop the single application form.
    1. The Drug Utilization Review Board shall make recommendations to the Commissioner for the adoption of the preferred drug list. The Board's recommendations shall be based upon evidence-based considerations of clinical efficacy, adverse side effects, safety, appropriate clinical trials, and cost-effectiveness. "Evidence-based" shall have the same meaning as in 18 V.S.A. § 4621 . The Commissioner shall provide the Board with evidence-based information about clinical efficacy, adverse side effects, safety, and appropriate clinical trials and shall provide information about cost-effectiveness of available drugs in the same therapeutic class. (f) (1)  The Drug Utilization Review Board shall make recommendations to the Commissioner for the adoption of the preferred drug list. The Board's recommendations shall be based upon evidence-based considerations of clinical efficacy, adverse side effects, safety, appropriate clinical trials, and cost-effectiveness. "Evidence-based" shall have the same meaning as in 18 V.S.A. § 4621 . The Commissioner shall provide the Board with evidence-based information about clinical efficacy, adverse side effects, safety, and appropriate clinical trials and shall provide information about cost-effectiveness of available drugs in the same therapeutic class.
    2. The Board shall meet at least quarterly. The Board shall comply with the requirements of 1 V.S.A. chapter 5, subchapter 2 (Open Meeting Law) and 1 V.S.A. chapter 5, subchapter 3 (Public Records Act), except that the Board may go into executive session to discuss drug alternatives and receive information on the relative price, net of any rebates, of a drug under discussion and the drug price in comparison to the prices, net of any rebates, of alternative drugs available in the same class to determine cost-effectiveness, and in order to comply with subsection 2002(c) of this title to consider information relating to a pharmaceutical rebate or to supplemental rebate agreements, which are protected from disclosure by federal law or the terms and conditions required by the Centers for Medicare and Medicaid Services as a condition of rebate authorization under the Medicaid program.
    3. To the extent feasible, the Board shall review all drug classes included in the preferred drug list at least every 24 months and may recommend that the Commissioner make additions to or deletions from the preferred drug list.
    4. The Program shall establish Board procedures for the timely review of prescription drugs newly approved by the federal Food and Drug Administration, including procedures for the review of newly approved prescription drugs in emergency circumstances.
    5. Members of the Board shall receive per diem compensation and reimbursement of expenses in accordance with 32 V.S.A. § 1010 .
    6. The Commissioner shall encourage participation in the joint purchasing consortium by inviting representatives of the programs and entities specified in subdivision (c)(1) of this section to participate as observers or nonvoting members in the Drug Utilization Review Board and by inviting the representatives to use the preferred drug list in connection with the plans' prescription drug coverage.
  5. The Department shall seek assistance from entities conducting independent research into the effectiveness of prescription drugs to provide technical and clinical support in the development and the administration of the preferred drug list and the evidence-based education program established in 18 V.S.A. chapter 91, subchapter 2.

    Added 2001, No. 127 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2003, No. 122 (Adj. Sess.), § 128f; 2003, No. 156 (Adj. Sess.), § 15; 2005, No. 71 , § 308; 2005, No. 174 (Adj. Sess.), § 101; 2007, No. 80 , §§ 1a, 2; 2009, No. 59 , § 9; 2009, No. 1 (Sp. Sess.), § E.309.2; 2009, No. 1 56 (Adj. Sess.), § I.62; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2011, No. 171 (Adj. Sess.), § 41c; 2013, No. 79 , § 26, eff. Jan. 1, 2014; 2013, No. 131 (Adj. Sess.), § 45, eff. May 20, 2014; 2013, No. 142 (Adj. Sess.), § 98a; 2017, No. 85 , § E.306.1.

History

Reference in text. The federal Food and Drug Administration, referred to in subdiv. (f)(4), is codified as 21 U.S.C. § 371 et seq.

Amendments--2017. Subdiv. (f)(3): Substituted "24 months" for "12 months" following "at least every".

Amendments--2013 (Adj. Sess.). Subdiv. (c)(6): Repealed by Act No. 142.

Subdiv. (f)(2): Act No. 131 substituted "(Open Meeting Law)" for "(open meetings)" following "subchapter 2" and "(Public Records Act)" for "(open records)" following "subchapter 3".

Amendments--2013. Subdiv. (c)(1): Deleted "the Vermont Health Access Program (VHAP)" following "Medicaid" and "VermontRx" preceding "VPharm".

Amendments--2011 (Adj. Sess.). Subdiv. (c)(6): Act No. 171 substituted "health care oversight committee" for "health access oversight committee".

Subdiv. (c)(7): Act No. 78 substituted "commissioner of financial regulation" for "commissioner of banking, insurance, securities, and health care administration".

Amendments--2009 (Adj. Sess.) Substituted "commissioner" for "director" and "department" for "office" wherever it appeared throughout the section.

Subsec. (g): Inserted "of chapter 91" following "subchapter".

Amendments--2009. Subdiv. (c)(4)(A): Act. No. 59 substituted "National" for "Northeast" preceding "Legislative" and "Drug Prices" for "Drugs in the Association's efforts to establish a Prescription Drug Fair Price Coalition" following "Prescription".

Amendments--2009 (Sp. Sess.). Subdiv. (f)(1): Act No. 1 (Sp. Sess.) added the fourth sentence.

Subdiv. (f)(2): Act No. 1 (Sp. Sess.) inserted "to discuss drug alternatives and receive information on the relative price, net of any rebates, of a drug under discussion and the drug price in comparison to the prices, net of any rebates, of alternative drugs available in the same class to determine cost-effectiveness, and" following "executive session".

Amendments--2007. Subsec. (a): Substituted "Use of an evidence-based" for "A" at the beginning of subdiv. (1); added subdiv. (7); and redesignated subdivs. (5)-(7) as present subdivs. (4)-(6).

Subdiv. (c)(1): Added the second through fourth sentences.

Subdiv. (f)(1): Inserted "evidence-based" preceding "considerations", "adverse side effects" following "efficacy", and "appropriate clinical trials" following "safety" in the second sentence, and added the third sentence.

Subdiv. (f)(6): Added.

Subsec. (g): Added.

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "director of the office of Vermont" for "commissioner of prevention, assistance, transition, and" preceding "health access".

Subdiv. (a)(1)(A): Substituted "director" for "commissioner".

Subdiv. (a)(1)(C): Substituted "director" for "commissioner" preceding "shall" and "director's" for "commissioner's" preceding "drug".

Subdiv. (a)(8): Substituted "director" for "commissioner".

Subsec. (b): Substituted "director" for "commissioner".

Subdiv. (c)(1): Substituted "director" for "commissioner".

Subdiv. (c)(2): Substituted "director of the office of Vermont" for "commissioner of prevention, assistance, transition, and" preceding "health access".

Subdiv. (c)(4): Inserted "the director" following "commissioner".

Subdivs. (c)(4)(C), (c)(4)(D): Substituted "director" for "commissioners".

Subdiv. (c)(5): Substituted "director" for "commissioner" and "the office of Vermont health access and the department of human resources" for "their departments".

Subdiv. (c)(6): Inserted "director, the" preceding "commissioners".

Subdiv. (c)(7): Substituted "director" for "commissioner", "National" for "Northeast" preceding "Legislative", and "Prices" for "Pricing" following "Drug".

Subsec. (d): Substituted "director" for "commissioner" throughout.

Subsec. (e): Substituted "director of the office of Vermont" for "commissioner of prevention, assistance, transition, and" preceding "health access".

Subdivs. (f)(1), (f)(3): Substituted "director" for "commissioner".

Amendments--2005. Subdiv. (f)(1): Substituted "director" for "commissioner".

Subdiv. (f)(2): Inserted "except that the board may go into executive session in order to comply with subsection 2002(c) of this title to consider information relating to a pharmaceutical rebate or to supplemental rebate agreements, which is protected from disclosure by federal law or the terms and conditions required by the Centers for Medicare and Medicaid Services as a condition of rebate authorization under the Medicaid program" following "(open records)".

Amendments--2003 (Adj. Sess.). Act No. 122 added "and over-the-counter drugs" following "alternatives" in subdiv. (a)(1), made a minor change in punctuation in subdiv. (a)(1)(A), added the third sentence in subdiv. (a)(1)(B), and rewrote subdiv. (a)(4).

Act No. 156 substituted "commissioner of human resources" for "commissioner of personnel" in subdivs. (a)(1)(B) and (c)(3), (5), and (7).

§ 1998a. Pharmacy mail order.

The Pharmacy Best Practices and Cost Control Program shall require consumers to purchase prescription drugs using mail order for selected pharmacy products.

Added 2005, No. 71 , § 307.

§ 1999. Consumer protection rules; prior authorization.

    1. The Pharmacy Best Practices and Cost Control Program shall authorize pharmacy benefit coverage when a patient's health care provider prescribes a prescription drug not on the preferred drug list, or a prescription drug that is not the list's preferred choice, if any of the circumstances set forth in subdivision (2) or (3) of this subsection applies. (a) (1)  The Pharmacy Best Practices and Cost Control Program shall authorize pharmacy benefit coverage when a patient's health care provider prescribes a prescription drug not on the preferred drug list, or a prescription drug that is not the list's preferred choice, if any of the circumstances set forth in subdivision (2) or (3) of this subsection applies.
      1. The Program shall authorize coverage under the same terms as coverage for preferred choice drugs if the prescriber determines, after consultation with the pharmacist, or with the participating health benefit plan if required by the terms of the plan, that one or more of the following circumstances apply: (2) (A) The Program shall authorize coverage under the same terms as coverage for preferred choice drugs if the prescriber determines, after consultation with the pharmacist, or with the participating health benefit plan if required by the terms of the plan, that one or more of the following circumstances apply:
        1. The preferred choice or choices have not been effective, or with reasonable certainty are not expected to be effective, in treating the patient's condition.
        2. The preferred choice or choices cause or are reasonably expected to cause adverse or harmful reactions in the patient.
          1. The patient is new to the Program and has been stabilized on a prescription drug that is not on the preferred drug list or is not one of the list's preferred choices, or a current patient has been stabilized on a prescription drug that has been removed from preferred drug list or is no longer one of the list's preferred choices, and it is clinically indicated that the patient should remain stabilized on the drug in order to avoid an adverse clinical impact or outcome.

          (II) The Drug Utilization Review Board and the Department of Vermont Health Access shall clinically evaluate newly introduced medications and therapeutic classes to determine their clinical appropriateness for continuation of coverage as set forth in subdivision (I) of this subdivision (iii).

      2. The prescriber's determination concerning whether the standards established in this subdivision (2) have been demonstrated shall be final if any documentation required at the direction of the Drug Utilization Review Board has been provided.
    2. The Program shall authorize coverage if the patient agrees to pay any additional cost in excess of the benefits provided by the patient's health benefit plan that is participating in the Program. The provisions of this subdivision (3) shall not apply to the extent that they may be inconsistent with any federal Medicaid laws and regulations. The provisions of this subdivision (3) shall not affect implementation by a participating health benefit plan of tiered copayments or other similar cost sharing systems.
  1. The Program or any participating health benefit plan shall provide information on how prescribers, pharmacists, beneficiaries, and other interested parties can obtain a copy of the preferred drug list, whether any change has been made to the preferred drug list since it was last issued, and the process by which exceptions to the preferred list may be made.
  2. , (d)  [Repealed.]

    (e) (1) The prior authorization process shall be designed to minimize administrative burdens on prescribers, pharmacists, and consumers. The provisions of this section shall apply to the Program's prior authorization process.

    (2) The prior authorization process shall ensure real-time receipt of requests, by telephone, voicemail, facsimile, electronic transmission, or mail on a 24-hour basis, seven days a week.

    (3) The prior authorization process shall provide an in-person response to emergency requests by a prescriber with telephone answering queues that do not exceed 10 minutes.

    (4) Any request for authorization or approval of a drug that the prescriber indicates, including the clinical reasons for the request, is for an emergency or urgent condition shall be responded to in no more than four hours from the time the Program or participating health benefit plan receives the request.

    (5) In emergency circumstances, or if the response to a request for prior authorization is not provided within the time period established in subdivision (4) of this subsection, a 72-hour supply of the drug prescribed shall be deemed to be authorized by the Program or the participating health benefit plan, provided it is a prescription drug approved by the Food and Drug Administration, and provided, for drugs dispensed to a Medicaid beneficiary, it is subject to a rebate agreement with the Centers for Medicare and Medicaid Services.

    (6) The Program or participating plan shall provide to participating providers a prior authorization request form for each enrolled beneficiary, known to be a patient of the provider, designed to permit the prescriber to make prior authorization requests in advance of the need to fill the prescription, and designed to be completed without unnecessary delay. The form shall be capable of being stamped with information relating to the participating provider, and if feasible at least one form capable of being copied shall contain known patient information.

    (f) The Program's prior authorization process shall require that the prescriber, not the pharmacy, request a prior authorization exemption to the requirements of this section. No later than December 31, 2004, the Commissioner shall create a pilot program designed to exempt a prescriber from the prior authorization requirement of the preferred drug list program if the Program determines that the prescriber has met compliance standards established by the Department in consultation with the Drug Utilization Review Board. This exemption does not apply to drugs that require prior authorization for clinical reasons.

    Added 2001, No. 127 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2003, No. 122 (Adj. Sess.), § 128k; 2005, No. 71 , §§ 309, 310; 2011, No. 171 (Adj. Sess.), § 41c; 2013, No. 131 (Adj. Sess.), § 46, eff. May 20, 2014; 2019, No. 154 (Adj. Sess.), § E.307, eff. Oct. 2, 2020.

History

Reference in text. The federal Food and Drug Administration, referred to in subdiv. (e)(5), is codified as 21 U.S.C. § 371 et seq.

Amendments--2019 (Adj. Sess.). Subdiv. (a)(1): Substituted "that" for "which" following "drug" and "any" for "either" following "if".

Subdiv. (a)(2)(A): Inserted "one or more of the following circumstances apply" following "plan, that".

Subdivs. (a)(2)(A)(i), (a)(2)(A)(ii): Substituted "The preferred choice or choices have" for "the preferred choice has", and substituted "are" for "is".

Subdiv. (a)(2)(A)(iii): Added.

Subsecs. (c), (d): Repealed.

Amendments--2013 (Adj. Sess.). Subdiv. (e)(1): Deleted ", except to the extent that different prior authorization rules are established in section 2004 of this title" at the end.

Amendments--2011 (Adj. Sess.). Subsec. (d): Substituted "health care oversight committee" for "health access oversight committee".

Amendments--2005. Subdiv. (a)(2)(B): Inserted "if any documentation required at the direction of the drug utilization board has been provided" following "final".

Subsec. (d): Amended generally.

Amendments--2003 (Adj. Sess.). Subsec. (f): Amended generally.

§ 2000. Pharmacy benefit management.

The Commissioner may implement all or a portion of the Pharmacy Best Practices and Cost Control Program through a contract with a third party with expertise in the management of pharmacy benefits.

Added 2001, No. 127 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2005, No. 174 (Adj. Sess.), § 102; 2009, No. 156 (Adj. Sess.), § I.63.

History

Amendments--2009 (Adj. Sess.) Substituted "commissioner" for "director".

Amendments--2005 (Adj. Sess.). Substituted "director" for "commissioner" preceding "may".

§ 2001. Legislative oversight.

  1. In connection with the Pharmacy Best Practices and Cost Control Program, the Commissioner of Vermont Health Access shall report for review by the House Committees on Appropriations, on Health Care, and on Human Services and the Senate Committees on Appropriations and on Health and Welfare prior to any modifications:
    1. the compilation that constitutes the preferred drug list or list of drugs subject to prior authorization or any other utilization review procedures;
    2. any utilization review procedures, including any prior authorization procedures; and
    3. the procedures by which drugs will be identified as preferred on the preferred drug list, and the procedures by which drugs will be selected for prior authorization or any other utilization review procedure.
  2. The Committees shall closely monitor implementation of the preferred drug list and utilization review procedures to ensure that the consumer protection standards enacted pursuant to section 1999 of this title are not diminished as a result of implementing the preferred drug list and the utilization review procedures, including any unnecessary delay in access to appropriate medications. The Committees shall ensure that all affected interests, including consumers, health care providers, pharmacists, and others with pharmaceutical expertise have an opportunity to comment on the preferred drug list and procedures reviewed under this subsection.
  3. The Commissioner of Vermont Health Access shall report annually on or before October 30 to the House Committees on Appropriations, on Health Care, and on Human Services and the Senate Committees on Appropriations and on Health and Welfare concerning the Pharmacy Best Practices and Cost Control Program. Topics covered in the report shall include issues related to drug cost and utilization; the effect of national trends on the pharmacy program; comparisons to other states; and decisions made by the Department's Drug Utilization Review Board in relation to both drug utilization review efforts and the placement of drugs on the Department's preferred drug list.
  4. [Repealed.]
    1. [Repealed.] (e) (1)  [Repealed.]
    2. The Commissioner shall not enter into a contract with a pharmacy benefit manager unless the pharmacy benefit manager has agreed to disclose to the Commissioner the terms and the financial impact on Vermont and on Vermont beneficiaries of:
      1. any agreement with a pharmaceutical manufacturer to favor the manufacturer's products over a competitor's products, or to place the manufacturer's drug on the pharmacy benefit manager's preferred list or formulary, or to switch the drug prescribed by the patient's health care provider with a drug agreed to by the pharmacy benefit manager and the manufacturer;
      2. any agreement with a pharmaceutical manufacturer to share manufacturer rebates and discounts with the pharmacy benefit manager, or to pay "soft money" or other economic benefits to the pharmacy benefit manager;
      3. any agreement or practice to bill Vermont health benefit plans for prescription drugs at a cost higher than the pharmacy benefit manager pays the pharmacy;
      4. any agreement to share revenue with a mail order or Internet pharmacy company;
      5. any agreement to sell prescription drug data concerning Vermont beneficiaries or data concerning the prescribing practices of the health care providers of Vermont beneficiaries; or
      6. any other agreement of the pharmacy benefit manager with a pharmaceutical manufacturer, or with wholesale and retail pharmacies, affecting the cost of pharmacy benefits provided to Vermont beneficiaries.
    3. The Commissioner shall not enter into a contract with a pharmacy benefit manager who has entered into an agreement or engaged in a practice described in subdivision (2) of this subsection, unless the Commissioner determines that the agreement or practice furthers the financial interests of Vermont and does not adversely affect the medical interests of Vermont beneficiaries.

      Added 2001, No. 127 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2005, No. 174 (Adj. Sess.), § 103; 2009, No. 33 , § 83; 2009, No. 156 (Adj. Sess.), § I.64; 2011, No. 171 (Adj. Sess.), § 41c; 2015, No. 23 , § 57; 2015, No. 58 , § E.307.1; 2015, No. 97 (Adj. Sess.), § 68; 2015, No. 172 (Adj. Sess.), § E.306.10.

History

Editor's note. The text of subsecs. (a) through (c) is based on the harmonization of two amendments. During the 2015 Adjourned Session, subsecs. (a) through (c) were amended twice, by Act Nos. 97 and 172, resulting in two versions of these subsections. In order to reflect all of the changes enacted by the Legislature during the 2015 Adjourned Session, the text of Act No. 97, § 68 and Act No. 172, § E.306.10 was merged to arrive at a single version of these subsections. The changes that each of the amendments made by each act are described in the amendment notes set out below.

Amendments--2015 (Adj. Sess.). Subsec. (a): In introductory language, Act Nos. 97 and 172 both substituted "House Committees on Appropriations, on Health Care, and on Human Services and the Senate Committees on Appropriations and on Health and Welfare" for "Health Care Oversight Committee, prior to initial implementation, and" and Act No. 172 deleted "subsequent" preceding "modifications".

Subsec. (b): Act Nos. 97 and 172 both substituted "Committees" for "Health Care Oversight Committee" in the first sentence and "Committees" for "Committee" in the second sentence.

Subsec. (c): In the first sentence, Act No. 172 substituted "October 30" for "August 31" and Act Nos. 97 and 172 both substituted 'House Committees on Appropriations, on Health Care, and on Human Services and the Senate Committees on Appropriations and on Health and Welfare" for "Health Reform Oversight Committee".

Act No. 172 substituted "October 30" for "August 31" and "House Committees on Appropriations, on Health Care, and on Human Services and the Senate Committees on Appropriations and on Health and Welfare" for "Health Reform Oversight Committee" in the first sentence.

Amendments--2015. Subsec. (c): Rewrote the subsection.

Subdiv. (e)(3): Deleted "and certifies in the fiscal report required by subdivision (d)(4) of this section" following "Commissioner determines" and substituted "the agreement" for "such agreement".

Amendments--2011 (Adj. Sess.). Subsecs. (a)-(c): Substituted "health care oversight committee" for "health access oversight committee".

Amendments--2009 (Adj. Sess.) Substituted "the commissioner of Vermont health" for "the director of the office of Vermont health" in subsecs. (a) and (c), and "commissioner" for "director" in subdivs. (e)(2) and (3).

Amendments--2009. Subsec. (d): Repealed.

Subdiv. (e)(1): Repealed.

Amendments--2005 (Adj. Sess.). Substituted "director of the office of Vermont" for "commissioner of prevention, assistance, transition, and" preceding "health access" throughout the section; "state's" for "department" in subdiv. (d)(2); "office" for "department" in subdiv. (d)(6); and "director" for "commissioner" in subdivs. (e)(1)-(e)(3).

§ 2002. Supplemental rebates.

  1. The Commissioner of Vermont Health Access, separately or in concert with the authorized representatives of any participating health benefit plan, shall use the preferred drug list authorized by the Pharmacy Best Practices and Cost Control Program to negotiate with pharmaceutical companies for the payment to the Commissioner of supplemental rebates or price discounts for Medicaid and for any other State public assistance health benefit plans designated by the Commissioner, in addition to those required by Title XIX of the Social Security Act. The Commissioner may also use the preferred drug list to negotiate for the payment of rebates or price discounts in connection with drugs covered under any other participating health benefit plan within or outside this State, provided that such negotiations and any subsequent agreement shall comply with the provisions of 42 U.S.C. § 1396r -8. The Program, or such portions of the Program as the Commissioner shall designate, shall constitute a State pharmaceutical assistance program under 42 U.S.C. § 1396r -8(c)(1)(C).
  2. The Commissioner shall negotiate supplemental rebates, price discounts, and other mechanisms to reduce net prescription drug costs by means of any negotiation strategy that the Commissioner determines will result in the maximum economic benefit to the Program and to consumers in this State, while maintaining access to high-quality prescription drug therapies. The Commissioner may negotiate through a purchasing pool or directly with manufacturers. The provisions of this subsection do not authorize agreements with pharmaceutical manufacturers in which financial support for medical services covered by the Medicaid program is accepted as consideration for placement of one or more prescription drugs on the preferred drug list.
  3. The Department of Vermont Health Access shall prohibit the public disclosure of information revealing company-identifiable trade secrets (including rebate and supplemental rebate amounts, and manufacturer's pricing) obtained by the Department, and by any officer, employee, or contractor of the Department in the course of negotiations conducted pursuant to this section. Such confidential information shall be exempt from public disclosure under 1 V.S.A. chapter 5, subchapter 3 (Public Records Act).

    Added 2001, No. 127 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2005, No. 71 , § 311; 2005, No. 174 (Adj. Sess.), § 104; 2009, No. 156 (Adj. Sess.), § I.65; 2021, No. 20 , § 307.

History

Reference in text. Title XIX of the Social Security Act, referred to in subsec. (a), is codified as 42 U.S.C. § 1396 et seq.

Amendments--2021 Subsec. (b): Substituted "that" for "which" following "strategy" in the first sentence and "in which" for "whereby" preceding "financial support" in the last sentence.

Amendments--2009 (Adj. Sess.) Substituted "the commissioner of Vermont health" for "the director of the office of Vermont health" in subsec. (a) and "director" for "commissioner" wherever it appeared throughout the section.

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "director of the office of Vermont health access" for "commissioner" and "director" for "commissioner" in four places.

Subsec. (c): Substituted "office of Vermont health access" for "commissioner and the department" and "office" for "department".

Amendments--2005. Subsec. (b): Substituted "director" for "commissioner" in two places in the first sentence, added the present second sentence, and deleted the fourth sentence.

§ 2003. Pharmacy discount plans.

  1. The Commissioner of Vermont Health Access shall implement pharmacy discount plans, to be known as the Healthy Vermonters Program, for Vermonters without adequate coverage for prescription drugs. The provisions of subchapter 8 of this chapter shall apply to the Commissioner's authority to administer the pharmacy discount plans established by this section.
  2. The Healthy Vermonters Program shall offer beneficiaries an initial discounted cost for covered drugs. Upon approval by the Centers for Medicare and Medicaid Services of a Section 1115 Medicaid waiver program, and upon subsequent legislative approval, the Healthy Vermonters Program shall offer beneficiaries a secondary discounted cost, which shall reflect a State payment toward the cost of each dispensed drug as well as any rebate amount negotiated by the Commissioner.
  3. As used in this section:
    1. "Beneficiary" means any individual enrolled in the Healthy Vermonters Program.
    2. "Healthy Vermonters beneficiary" means any individual Vermont resident without adequate coverage:
      1. who is at least 65 years of age, or is disabled and is eligible for Medicare or Social Security disability benefits, with household income equal to or less than 400 percent of the federal poverty level, as calculated using modified adjusted gross income as defined in 26 U.S.C. § 36B(d)(2)(B); or
      2. whose household income is equal to or less than 350 percent of the federal poverty level, as calculated using modified adjusted gross income as defined in 26 U.S.C. § 36B(d)(2)(B).
    3. [Repealed.]
    4. "Initial discounted cost" means the price of the drug based on the Medicaid fee schedule.
    5. "Labeler" means an entity or person that receives prescription drugs from a manufacturer or wholesaler and repackages those drugs for later retail sale and that has a labeler code from the federal Food and Drug Administration under 21 C.F.R. § 207.20.
    6. "Participating retail pharmacy" means a retail pharmacy located in this State or another business licensed to dispense prescription drugs in this State that participates in the Program according to rules established by the Department and provides discounted prices to eligible beneficiaries of the Program.
    7. "Rebate amount" means the rebate negotiated by the Director and required from a drug manufacturer or labeler under this section. In determining the appropriate rebate, the Director shall:
      1. take into consideration the rebate calculated under the Medicaid rebate program under 42 U.S.C. § 1396r -8, the average wholesale price of prescription drugs, and any other information on prescription drug prices and price discounts;
      2. use his or her best efforts to obtain an initial rebate amount equal to or greater than the rebate calculated under the Medicaid program under 42 U.S.C. § 1396r -8; and
      3. use his or her best efforts to obtain an amount equal to or greater than the amount of any discount, rebate, or price reduction for prescription drugs provided to the federal government.
    8. "Secondary discounted cost" means, under the Healthy Vermonters Program, the price of the drug based on the Medicaid fee schedule, less payment by the State of at least two percent of the Medicaid rate, less any rebate amount negotiated by the Director and paid for out of the Healthy Vermonters Dedicated Fund established under subsection (h) of this section and, under the Healthy Vermonters Plus Program, the average wholesale price of the drug, less payment by the State of at least two percent of the Medicaid rate, less any rebate amount negotiated by the Director and paid for out of the Healthy Vermonters Dedicated Fund established under subsection (h) of this section.
    9. "Without adequate coverage" includes beneficiaries with no coverage for prescription drugs or certain types of prescription drugs and beneficiaries whose annual maximum coverage limit under their health benefit plan has been reached.
  4. Drugs covered by the pharmacy discount plans shall include all drugs covered under the Medicaid program.
  5. The Vermont Board of Pharmacy shall adopt standards of practice requiring disclosure by participating retail pharmacies to beneficiaries of the amount of savings provided as a result of the pharmacy discount plans. The standards must consider and protect information that is proprietary in nature. The Department of Vermont Health Access may not impose transaction charges under this Program on pharmacies that submit claims or receive payments under the plans. Pharmacies shall submit claims to the Department to verify the amount charged to beneficiaries under the plans. On a weekly or biweekly basis, the Department must reimburse pharmacies for the difference between the initial discounted price or the average wholesale price and the secondary discounted price provided to beneficiaries.
  6. The names of drug manufacturers and labelers who do and do not enter into rebate agreements under pharmacy discount plans are public information. The Department of Vermont Health Access shall release this information to health care providers and the public on a regular basis and shall publicize participation by manufacturers and labelers. The Department shall impose prior authorization requirements in the Medicaid program, as permitted by law, to the extent the Department determines it is appropriate to do so in order to encourage manufacturer and labeler participation in the pharmacy discount plans and so long as the additional prior authorization requirements remain consistent with the goals of the Medicaid program and the requirements of Title XIX of the Social Security Act.
  7. The Commissioner of Vermont Health Access shall establish, by rule, a process to resolve discrepancies in rebate amounts claimed by manufacturers, labelers, pharmacies, and the Department.
  8. The Healthy Vermonters Dedicated Fund is established to receive revenue from manufacturers and labelers who pay rebates as provided in this section and any appropriations or allocations designated for the Fund. The purposes of the Fund are to reimburse retail pharmacies for discounted prices provided to individuals enrolled in the pharmacy discount plans and to reimburse the Department of Vermont Health Access for contracted services, including pharmacy claims processing fees, administrative and associated computer costs, and other reasonable program costs. The Fund is a nonlapsing dedicated fund. Interest on Fund balances accrues to the Fund. Surplus funds in the Fund must be used for the benefit of the Program.
  9. [Repealed.]
  10. The Department of Vermont Health Access shall undertake outreach efforts to build public awareness of the pharmacy discount plans and maximize enrollment. Outreach efforts shall include steps to educate retail pharmacists on the purposes of the Healthy Vermonters Dedicated Fund, in particular as it relates to pharmacy reimbursements for discounted prices provided to Program enrollees. The Department may adjust the requirements and terms of the pharmacy discount plans to accommodate any new federally funded prescription drug programs.
  11. The Department of Vermont Health Access may contract with a third party or third parties to administer any or all components of the pharmacy discount plans, including outreach, eligibility, claims, administration, and rebate recovery and redistribution.
  12. The Department of Vermont Health Access shall administer the pharmacy discount plans and other medical and pharmaceutical assistance programs under this title in a manner advantageous to the programs and enrollees. In implementing this section, the Department may coordinate the other programs and the pharmacy discount plans and may take actions to enhance efficiency, reduce the cost of prescription drugs, and maximize benefits to the programs and enrollees, including providing the benefits of pharmacy discount plans to enrollees in other programs.
  13. The Department of Vermont Health Access may adopt rules to implement the provisions of this section.
  14. The Department of Vermont Health Access shall seek a waiver from the Centers for Medicare and Medicaid Services (CMS) requesting authorization necessary to implement the provisions of this section, including application of manufacturer and labeler rebates to the pharmacy discount plans. The secondary discounted cost shall not be available to beneficiaries of the pharmacy discount plans until the Department receives written notification from CMS that the waiver requested under this section has been approved and until the General Assembly subsequently approves all aspects of the pharmacy discount plans, including funding for positions and related operating costs associated with eligibility determinations.

    Added 2001, No. 127 (Adj. Sess.), § 1, eff. June 13, 2002; amended 2003, No. 122 (Adj. Sess.), § 128o; 2005, No. 174 (Adj. Sess.), § 105; 2007, No. 80 , § 7; 2009, No. 156 (Adj. Sess.), § I.66; 2011, No. 171 (Adj. Sess.), § 41c; 2013, No. 79 , § 31, eff. Jan. 1, 2014; 2013, No. 131 (Adj. Sess.), § 47, eff. May 20, 2014; 2013, No. 142 (Adj. Sess.), § 99.

History

Reference in text. The Section 1115 Medicaid waiver program, referred to in subsec. (b), is authorized pursuant to Section 1115 of the Social Security Act, which is codified as 42 U.S.C. § 1315.

Title XIX of the federal Social Security Act, referred to in subsec. (f), is codified as 42 U.S.C. § 1396 et seq.

Amendments--2013 (Adj. Sess.). Subdiv. (c)(5): Substituted "21 C.F.R. § 207.20" for "21 Code of Federal Regulations, 207.20 (1999)" at the end.

Subdivs. (c)(7)(A) and (c)(7)(B): Substituted "42 U.S.C. § 1396r-8" for "section 1396r-8 of Title 42 of the United States Code".

Subdiv. (c)(8): Substituted "subsection (h)" for "subsection (j)" twice.

Subsec. (f): Deleted "federal" preceding "Social Security Act".

Subsec. (i): Repealed by Act. No. 142.

Amendments--2013. Subdivs. (c)(2)(A), (c)(2)(B): Substituted "using modified adjusted gross income as defined in 26 U.S.C. § 36B(d)(2)(B)" for "under the rules of the Vermont health access plan, as amended" following "calculated".

Amendments--2011 (Adj. Sess.). Subsec. (i): Substituted "health care oversight committee" for "health access oversight committee".

Amendments--2009 (Adj. Sess.) Substituted "the commissioner of Vermont health" for "the director of the office of Vermont health" in subsec. (a) and "commissioner" for "director" and "department" for "office" wherever it appeared throughout the section.

Amendments--2007. Subsec. (a): Deleted "and the 'Healthy Vermonters Plus' program" preceding "for Vermonters" and substituted "subchapter 8 of this chapter" for "section 1992 of this title".

Subsec. (b): Deleted "and the Healthy Vermonters Plus program" preceding "shall offer".

Subdiv. (c)(1): Deleted "either" following "enrolled in" and "or the Healthy Vermonters Plus program" following "program".

Subdiv. (c)(3): Deleted.

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "director of the office of Vermont health access" for "commissioner" and "director's" for "commissioner's".

Subsec. (b): Substituted "director" for "commissioner".

Subdivs. (c)(7), (c)(8): Substituted "director" for "commissioner".

Subsecs. (e)-(g), (j), ( l ), (n): Substituted "office of Vermont health access" for "department" and "office" for "department".

Subsecs. (h), (i): Substituted "office of Vermont health access" for "department".

Subsecs. (k), (m): Substituted "office of Vermont health access" for "department" and "office" for "department".

Amendments--2003 (Adj. Sess.). Amended section to add Healthy Vermonters Plus program.

§ 2004. Manufacturer fee.

  1. Annually, each pharmaceutical manufacturer or labeler of prescription drugs that are paid for by the Department of Vermont Health Access for individuals participating in Medicaid, Dr. Dynasaur, or VPharm shall pay a fee to the Agency of Human Services. The fee shall be 1.75 percent of the previous calendar year's prescription drug spending by the Department and shall be assessed based on manufacturer labeler codes as used in the Medicaid rebate program.
  2. Fees collected under this section shall fund collection and analysis of information on pharmaceutical marketing activities under 18 V.S.A. §§ 4632 and 4633; analysis of prescription drug data needed by the Office of the Attorney General for enforcement activities; the Vermont Prescription Monitoring System established in 18 V.S.A. chapter 84A; the evidence-based education program established in 18 V.S.A. chapter 91, subchapter 2; statewide unused prescription drug disposal initiatives; prevention of prescription drug misuse, abuse, and diversion; the Substance Misuse Prevention Oversight and Advisory Council established in 18 V.S.A. § 4803 ; treatment of substance use disorder; exploration of nonpharmacological approaches to pain management; a hospital antimicrobial program for the purpose of reducing hospital-acquired infections; the purchase and distribution of fentanyl testing strips; the purchase and distribution of naloxone to emergency medical services personnel; and any opioid-antagonist education, training, and distribution program operated by the Department of Health or its agents. The fees shall be collected in the Evidence-Based Education and Advertising Fund established in section 2004a of this title.
  3. The Secretary of Human Services or designee shall make rules for the implementation of this section.
  4. The Department shall maintain on its website a list of the manufacturers who have failed to provide timely payment as required under this section.

    Added 2007, No. 80 , § 20; amended 2007, No. 89 (Adj. Sess.), § 4; 2009, No. 156 (Adj. Sess.), § I.67; 2011, No. 162 (Adj. Sess.), § E.311; 2013, No. 50 , § E.312.1; 2013, No. 79 , § 27, eff. Jan. 1, 2014; 2013, No. 95 (Adj. Sess.), § 84, eff. Feb. 25, 2014; 2015, No. 173 (Adj. Sess.), § 12, eff. Jan. 1, 2016; 2019, No. 70 , § 29; 2019, No. 72 , § E.313.

History

Amendments--2019. Subsec. (a): Act 70 substituted "1.75 percent" for "1.5 percent" in the second sentence.

Subsec. (b): Act 72 inserted "the Substance Misuse Prevention Oversight and Advisory Council established in 18 V.S.A. § 4803;" following "diversion" and "the purchase and distribution of fentanyl testing strips;" following "infections".

Amendments--2015 (Adj. Sess.). Subsec. (a): Substituted "1.5 percent" for "0.5 percent" in the second sentence.

Subsec. (b): Amended generally.

Subsec. (d): Added.

Amendments--2013 (Adj. Sess.). Subsec. (b): Deleted "and" preceding "training" and inserted ", and distribution" following "training".

Amendments--2013. Subsec. (a): Act No. 79 deleted "the Vermont Health Access Program," following "Medicaid" and ", or Vermont Rx" following "VPharm".

Amendments--2013 Subsec. (b): Act No. 50 deleted "and" following "chapter 84A," and added "and any opioid-antagonist education and training program operated by the Department of Health or its agents".

Amendments--2011 (Adj. Sess.). Subsec. (b): Inserted "the Vermont prescription monitoring system established in 18 V.S.A. chapter 84A" following "activities," and "18 V.S.A. chapter 91," preceding "subchapter 2"; and deleted "of chapter 91 of Title 18" following "subchapter 2".

Amendments--2009 (Adj. Sess.) Substituted "department" for "office" twice in subsec. (a).

Amendments--2007 (Adj. Sess.). Subsec. (b): Inserted "of chapter 91" following "subchapter 2".

§ 2004a. Evidence-Based Education and Advertising Fund.

  1. The Evidence-Based Education and Advertising Fund is established in the State Treasury as a special fund to be a source of financing for activities relating to fund collection and analysis of information on pharmaceutical marketing activities under 18 V.S.A. §§ 4632 and 4633; for analysis of prescription drug data needed by the Office of the Attorney General for enforcement activities; for the Vermont Prescription Monitoring System established in 18 V.S.A. chapter 84A; for the evidence-based education program established in 18 V.S.A. chapter 91, subchapter 2; for statewide unused prescription drug disposal initiatives; for the prevention of prescription drug misuse, abuse, and diversion; for the Substance Misuse Prevention Oversight and Advisory Council established in 18 V.S.A. § 4803 ; for treatment of substance use disorder; for exploration of nonpharmacological approaches to pain management; for a hospital antimicrobial program for the purpose of reducing hospital-acquired infections; for the purchase and distribution of fentanyl testing strips; for the purchase and distribution of naloxone to emergency medical services personnel; and for the support of any opioid-antagonist education, training, and distribution program operated by the Department of Health or its agents. Monies deposited into the Fund shall be used for the purposes described in this section.
  2. Into the Fund shall be deposited:
    1. revenue from the manufacturer fee established under section 2004 of this title; and
    2. the proceeds from grants, donations, contributions, taxes, and any other sources of revenue as may be provided by statute, rule, or act of the General Assembly.
  3. The Fund shall be administered pursuant to 32 V.S.A. chapter 7, subchapter 5, except that interest earned on the Fund and any remaining balance shall be retained in the Fund.

    Added 2007, No. 80 , § 20a; amended 2011, No. 162 (Adj. Sess.), § E.311.1, eff. May 17, 2012; 2013, No. 50 , § E.312.2; 2013, No. 95 (Adj. Sess.), § 85, eff. Feb. 25, 2014; 2015, No. 173 (Adj. Sess.), § 13; 2019, No. 72 , § E.313.1.

History

Amendments--2019. Subsec. (a): Inserted "the Substance Misuse Prevention Oversight and Advisory Council established in 18 V.S.A. § 4803;" following "diversion" and "the purchase and distribution of fentanyl testing strips;" following "infections".

Amendments--2015 (Adj. Sess.). Subsec. (a): Amended generally.

Amendments--2013 (Adj. Sess.). Subsec. (a): Deleted "and" preceding "training" and inserted ", and distribution" following "training".

Amendments--2013 Subsec (a): In the first sentence, substituted "State Treasury" for "treasury" after "established in"; substituted "Office of the Attorney General" for "attorney general's office"; inserted "for" after "enforcement activities"; deleted "and" after "18 V.S.A. chapter 84A"; and added "and for the support of any opioid-antagonist education and training program operated by the Department of Health or its agents" at the end of the sentence.

Amendments--2011 (Adj. Sess.). Subsec. (a): Inserted "the Vermont prescription monitoring system established in 18 V.S.A. chapter 84A" following "activities," and "18 V.S.A. chapter 91," preceding "subchapter 2"; and deleted "of Title 18" following "subchapter 2".

§§ 2005, 2006. Recodified. 2007, No. 80, § 23.

History

Codification. Former § 2005, relating to pharmaceutical marketers, was recodified as 18 V.S.A. § 4632 pursuant to 2007, No. 80 , § 23.

Former § 2005a, relating to pharmaceutical marketer price disclosure, was recodified as 18 V.S.A. § 4633 pursuant to 2007, No. 80 , § 23.

Former § 2006, relating to the northeast legislative association on prescription drugs pricing, was recodified as 2 V.S.A. § 852 pursuant to 2007, No. 80 , § 23.

§ 2007. Canadian Prescription Drug Information Program.

The Department of Vermont Health Access shall establish a website and prepare written information to offer guidance to Vermont residents seeking information about ordering prescription drugs through the mail or otherwise from a participating Canadian pharmacy.

Added 2003, No. 122 (Adj. Sess.), § 128m; amended 2005, No. 174 (Adj. Sess.), § 106; 2009, No. 156 (Adj. Sess.), § I.68.

History

Amendments--2009 (Adj. Sess.) Substituted "department of Vermont health" for "office of Vermont health".

Amendments--2005 (Adj. Sess.). Substituted "office of Vermont" for "department of prevention, assistance, transition, and" preceding "health access".

§ 2008. Recodified. 2007, No. 80, § 23.

History

Codification. Former § 2008, relating to prescription drug price disclosure, was recodified as 18 V.S.A. § 4634 pursuant to 2007, No 80, § 23.

§§ 2009 Repealed. 2007, No. 80, § 24.

History

Former § 2009. Former § 2009, relating to the study of the federal discount programs, was derived from 2003, No. 122 (Adj. Sess.), § 128g.

§ 2010. Repealed. 2017, No. 210 (Adj. Sess.). § 15, effective June 1, 2018.

History

Former § 2010. Former § 2010, relating to actual price disclosure and certification of prescription drugs, was derived from 2007, No. 80 , § 6 and amended by 2009, No. 156 (Adj. Sess.), § I.69; 2011, No. 109 (Adj. Sess.), § 3, eff. May 8, 2012; 2011, No. 136 (Adj. Sess.), § 1b; and 2015, No. 29 , § 10.

Subchapter 6. Clinical Utilization Review Board

§ 2031. Creation of Clinical Utilization Review Board.

  1. No later than June 15, 2010, the Department of Vermont Health Access shall create a Clinical Utilization Review Board to examine existing medical services, emerging technologies, and relevant evidence-based clinical practice guidelines and make recommendations to the Department regarding coverage, unit limitations, place of service, and appropriate medical necessity of services in the State's Medicaid programs.
  2. The Board shall comprise 10 members with diverse medical experience, to be appointed by the Governor upon recommendation of the Commissioner of Vermont Health Access. The Board shall solicit additional input as needed from individuals with expertise in areas of relevance to the Board's deliberations. The Medical Director of the Department of Vermont Health Access shall serve as the State's liaison to the Board. Board member terms shall be staggered, but in no event longer than three years from the date of appointment. The Board shall meet at least quarterly, provided that the Board shall meet no less frequently than once per month for the first six months following its formation.
  3. The Board shall have the following duties and responsibilities:
    1. Identify and recommend to the Commissioner of Vermont Health Access opportunities to improve quality, efficiencies, and adherence to relevant evidence-based clinical practice guidelines in the Department's medical programs by:
      1. examining high-cost and high-use services identified through the programs' current medical claims data;
      2. reviewing existing utilization controls to identify areas in which improved utilization review might be indicated, including use of elective, nonemergency, out-of-state outpatient and hospital services;
      3. reviewing medical literature on current best practices and areas in which services lack sufficient evidence to support their effectiveness;
      4. conferring with commissioners, directors, and councils within the Agency of Human Services and the Department of Financial Regulation, as appropriate, to identify specific opportunities for exploration and to solicit recommendations;
      5. identifying appropriate but underutilized services and recommending new services for addition to Medicaid coverage;
      6. determining whether it would be clinically and fiscally appropriate for the Department of Vermont Health Access to contract with facilities that specialize in certain treatments and have been recognized by the medical community as having good clinical outcomes and low morbidity and mortality rates, such as transplant centers and pediatric oncology centers; and
      7. considering the possible administrative burdens or benefits of potential recommendations on providers, including examining the feasibility of exempting from prior authorization requirements those health care professionals whose prior authorization requests are routinely granted.
    2. Recommend to the Commissioner of Vermont Health Access the most appropriate mechanisms to implement the recommended evidence-based clinical practice guidelines. Such mechanisms may include prior authorization, prepayment, postservice claim review, and frequency limits. Recommendations shall be consistent with the Department's existing utilization processes, including those related to transparency, timeliness, and reporting. Prior to submitting final recommendations to the Commissioner of Vermont Health Access, the Board shall ensure time for public comment is available during the Board's meeting and identify other methods for soliciting public input.
  4. The Commissioner may adopt a mechanism recommended pursuant to subdivision (c)(2) of this section with or without amendment, provided that if the Commissioner proposes to amend the mechanism recommended by the Board, he or she shall request the Board to consider the amendment before the mechanism is implemented or is filed as a proposed administrative rule pursuant to 3 V.S.A. § 838 .

    Added 2009, No. 146 (Adj. Sess.), § C34; amended No. 156, § F.7; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.

History

Amendments--2011 (Adj. Sess.). Subdiv. (c)(1)(D): Substituted "department of financial regulation" for "department of banking, insurance, securities, and health care administration".

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "June 15, 2010" for "May 15, 2010".

§ 2032. Role of Department of Vermont Health Access.

  1. The Department of Vermont Health Access shall provide the Clinical Utilization Review Board with data support to enable the Board to conduct reviews.
  2. The Department's Program Integrity Unit shall inform the Board of practices the Unit has identified through its reviews in order to avoid duplication of efforts.
  3. The Department shall provide members of the Board with per diem compensation.
  4. The Department shall have the final authority to evaluate and implement the Board's recommendations.
  5. The Department shall conduct comprehensive evaluations of the Board's success in improving clinical and utilization results using claims data and a survey of health care professional satisfaction. The Department shall report annually by January 15 to the House Committee on Health Care and the Senate Committee on Health and Welfare regarding the results of the most recent evaluation or evaluations and a summary of the Board's activities and recommendations since the last report. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.
  6. The Department shall adopt rules pursuant to 3 V.S.A. chapter 25 as needed to implement specific recommendations.

    Added 2009, No. 146 (Adj. Sess.), § C34; amended 2013, No. 142 (Adj. Sess.), § 70; 2015, No. 11 , § 36.

History

Amendments--2015. Subsec. (e): Substituted "results" for "outcomes" following "utilization" in the first sentence.

Amendments--2013 (Adj. Sess.). Subsec. (e): Added the third sentence.

Subchapter 8. Vermont Pharmaceutical Assistance Programs

§ 2071. Definitions.

As used in this subchapter:

  1. "Individual with disabilities" means an individual who is under age 65 and is entitled, under the Social Security Act, to disability insurance benefits or is eligible for Medicare.
  2. "Maintenance drug" means a drug approved by the federal Food and Drug Administration for continuous use and prescribed to treat a chronic condition for a prolonged period of time of 30 days or longer and includes insulin, an insulin syringe, and an insulin needle.
  3. "Medicare Part D" means the prescription drug program established under the Medicare Prescription Drug, Improvement and Modernization Act of 2003, Pub. L. No. 108-173, including the prescription drug plans offered pursuant to the act.
  4. "DVHA" means the Department of Vermont Health Access.
  5. "Pharmaceutical" means a drug that may not be dispensed unless prescribed by a health care provider as defined by 18 V.S.A. § 9402(7) acting within the scope of the provider's license. The term excludes a drug determined less than effective under the federal Food, Drug and Cosmetics Act.
  6. "Pharmacy" means a retail or institutional drug outlet licensed by the Vermont State Board of Pharmacy pursuant to 26 V.S.A. chapter 36, or by an equivalent board in another state, in which pharmaceuticals are sold at retail and that has entered into a written agreement with the State to dispense pharmaceuticals in accordance with the provisions of this chapter.

    Added 2005, No. 71 , § 314; amended 2009, No. 156 (Adj. Sess.), § I.70; 2013, No. 131 (Adj. Sess.), § 48, eff. May 20, 2014.

History

Reference in text. The federal Social Security Act, referred to in subdiv. (1), is codified as 42 U.S.C. § 301 et seq.

The Food, Drug and Cosmetics Act, referred to in subdiv. (5), is codified as 21 U.S.C. § 301 et seq.

2013. Substituted "As used in" for "For the purposes of" to conform with V.S.A. style.

- 2008. In subdiv. (5), substituted "9402(7)" for "9402(8)" for purposes of clarity.

Amendments--2013 (Adj. Sess.). Subdiv. (1): Deleted "federal" preceding "Social Security Act".

Subdiv. (2): Substituted "federal Food and Drug Administration" for "FDA" following "approved by the".

Amendments--2009 (Adj. Sess.) Subdiv. (4): Substituted "DVHA" for "OVHA" and "department" for "office".

§ 2072. General eligibility.

  1. An individual shall be eligible for assistance under this subchapter if the individual:
    1. is a resident of Vermont at the time of application for benefits;
    2. is at least 65 years of age or is an individual with disabilities as defined in subdivision 2071(1) of this title; and
    3. has a household income, when calculated using modified adjusted gross income as defined in 26 U.S.C. § 36B(d)(2)(B), no greater than 225 percent of the federal poverty level.
  2. An individual whose pharmaceutical expenses are paid or reimbursable, either in whole or in part, by any plan of assistance or insurance, other than Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act, shall not be eligible for pharmaceutical assistance under this subchapter. No assistance shall be provided under this subchapter with respect to an individual pharmaceutical purchase that may be covered in whole by Title XVIII.
  3. If an individual becomes ineligible for assistance under this subchapter, the Secretary shall terminate assistance to the individual.

    Added 2005, No. 71 , § 314; amended 2009, No. 1 (Sp. Sess.), § E.309; 2013, No. 79 , § 32, eff. Jan. 1, 2014.

History

Reference in text. Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act, referred to in subsec. (b), are codified as 42 U.S.C. §§ 1395 et seq. and § 1396 et seq., respectively.

Amendments--2013. Subdiv. (b)(3): Substituted "using modified adjusted gross income as defined in 26 U.S.C. § 36B(d)(2)(B)" for "in accordance with the rules adopted for the Vermont health access plan under No. 14 of the Acts of 1995, as amended" following "calculated".

Amendments--2009 (Sp. Sess.). Subsec. (c): Added.

§ 2073. VPharm assistance program.

  1. Subsection (a) contingently effective until the later of January 1, 2022 or federal approval of VPharm coverage expansion; see also subsection (a) contingently effective on the later of January 1, 2022 or federal approval of VPharm coverage expansion set out below.  Effective January 1, 2006, the VPharm program is established as a State pharmaceutical assistance program to provide supplemental pharmaceutical coverage to Medicare beneficiaries. The supplemental coverage under subsection (c) of this section shall provide only the same pharmaceutical coverage as the Medicaid program to enrolled individuals whose income is not greater than 150 percent of the federal poverty guidelines and only coverage for maintenance drugs for enrolled individuals whose income is greater than 150 percent and no greater than 225 percent of the federal poverty guidelines.

    (a) Subsection (a) contingently effective January 1, 2022 or federal approval of VPharm coverage expansion; see also subsection (a) contingently effective until the later of January 1, 2022 or federal approval of VPharm coverage expansion set out above. The VPharm program is established as a State pharmaceutical assistance program to provide supplemental pharmaceutical coverage to Medicare beneficiaries. The supplemental coverage under subsection (c) of this section shall provide the same pharmaceutical coverage as the Medicaid program to enrolled individuals whose income is not greater than 225 percent of the federal poverty guidelines.

  2. Subsection (b) contingently effective until the later of January 1, 2022 or federal approval of VPharm coverage expansion; see also subsection (b) contingently effective on the later of January 1, 2022 or federal approval of VPharm coverage expansion set out below.  Any individual with income no greater than 225 percent of the federal poverty guidelines participating in Medicare Part D, having secured the low income subsidy if the individual is eligible and meeting the general eligibility requirements established in section 2072 of this title, shall be eligible for VPharm.

    (b) Subsection (b) contingently effective on the later of January 1, 2022 or federal approval of VPharm coverage expansion; see also subsection (b) contingently effective until the later of January 1, 2022 or federal approval of VPharm coverage expansion set out above. Any individual with income not greater than 225 percent of the federal poverty guidelines participating in Medicare Part D, having secured the low-income subsidy if the individual is eligible and meeting the general eligibility requirements established in section 2072 of this title, shall be eligible for VPharm.

  3. VPharm shall provide supplemental benefits by paying or subsidizing:
    1. The actual Medicare Part D premium for the standard prescription drug benefit offered by Medicare Part D prescription drug programs, except for any late enrollment penalties, provided that DVHA may pay or subsidize a higher premium for a Medicare Part D prescription drug plan offering expanded benefits if it is cost-effective to do so.
    2. Any other cost-sharing required by Medicare Part D, except for co-payments for individuals eligible for Medicaid and as provided for in subdivision (d)(1) of this section.
    3. The following pharmaceuticals if they are not covered by the individual's Medicare Part D prescription drug plan: pharmaceuticals or classes of pharmaceuticals, or their medical uses, which may be excluded from coverage or otherwise restricted under Medicaid under Section 1927(d)(2) or (3) of the Social Security Act.
    4. Pharmaceuticals that are not covered after the individual has exhausted the Medicare Part D prescription drug plan's appeal process or the prescription drug plan's transition plan approved by the Centers for Medicare and Medicaid Services, and that are deemed medically necessary by the individual's prescriber in a manner established by the Commissioner of Vermont Health Access. The coverage decision under this subdivision shall not be subject to the exceptions process established under Medicaid. An individual may appeal to the Human Services Board or pursue any other remedies provided by law.
    1. An individual shall contribute a co-payment of $1.00 for prescriptions where the cost-sharing amount required by Medicare Part D is less than $30.00, and a co-payment of $2.00 for prescriptions where the cost-sharing amount required by Medicare Part D is $30.00 or more. A pharmacy may not refuse to dispense a prescription to an individual who does not provide the co-payment. (d) (1)  An individual shall contribute a co-payment of $1.00 for prescriptions where the cost-sharing amount required by Medicare Part D is less than $30.00, and a co-payment of $2.00 for prescriptions where the cost-sharing amount required by Medicare Part D is $30.00 or more. A pharmacy may not refuse to dispense a prescription to an individual who does not provide the co-payment.
    2. An individual shall contribute the following base cost-sharing amounts that shall be indexed to the increases established under 42 C.F.R. § 423.104(d)(5)(iv) and then rounded to the nearest dollar amount:
      1. in the case of recipients whose household income is no greater than 150 percent of the federal poverty level, such premium shall be $15.00 per month;
      2. in the case of recipients whose household income is greater than 150 percent of the federal poverty level and no greater than 175 percent of the federal poverty level, the premium shall be $20.00 per month; and
      3. in the case of recipients whose household income is greater than 175 percent of the federal poverty level and no greater than 225 percent of the federal poverty level, the premium shall be $50.00 per month.
  4. In order to ensure the appropriate payment of claims, DVHA may expand the Medicare advocacy program established under chapter 67 of this title to individuals receiving benefits from the VPharm program.
  5. A manufacturer of pharmaceuticals purchased by individuals receiving assistance from VPharm established under this section shall pay to DVHA, as required by section 1901 of this title, a rebate on all pharmaceutical claims for which State-only funds are expended in an amount that is in proportion to the State share of the total cost of the claim, as calculated annually on an aggregate basis, and based on the full Medicaid rebate amount as provided for in Section 1927(a) through (c) of the federal Social Security Act, 42 U.S.C. § 1396r -8.

    Added 2005, No. 71 , § 314; amended 2007, No. 172 (Adj. Sess.), § 11a; 2007, No. 192 (Adj. Sess.), § 6.017; 2009, No. 1 (Sp. Sess.), §§ E.309.6, E.309.7; 2009, No. 1 56 (Adj. Sess.), § E.309.16, eff. June 3, 2010; 2009, No. 156 (Adj. Sess.), §§ E.309.9, I.71; 2011, No. 162 (Adj. Sess.), §§ E.307, E.307.7; 2019, No. 140 (Adj. Sess.), § 6.

History

Reference in text. Section 1927(d) of the Social Security Act, referred to in subdiv. (c)(3), is codified as 42 U.S.C. § 1396r-8.

Amendments--2019 (Adj. Sess.). Subsec. (a): Deleted "Effective January 1, 2006" at the beginning of the first sentence and, in the second sentence, deleted "only" following "provide", substituted "225" for "150", and deleted "and only coverage for maintenance drugs for enrolled individuals whose income is greater than 150 percent and no greater than 225 percent of the federal poverty guidelines" from the end.

Subsec. (b): Substituted "not" for "no".

Amendments--2011 (Adj. Sess.). Subdiv. (d)(1): Deleted "$29.99 or" preceding "less" and inserted "than $30.00" following "less".

Subsec. (f): Substituted "pharmaceutical claims" for "pharmaceuticals" following "all" and "that is in proportion to the state share of the total cost of the claim, as calculated annually on an aggregate basis, and based on the full Medicaid rebate amount as provided for in Section 1927(a) through (c) of the federal Social Security Act, 42 U.S.C. Section 1396r-8" for "at least as favorable as the rebate paid to DVHA in connection with the Medicaid program" following "amount".

Amendments--2009 (Adj. Sess.) Subdiv. (c)(4): Substituted "the commissioner of Vermont health" for "the director of the office of Vermont health".

Subdiv. (d)(2): Substituted "$15.00" for "$17.00" in subdiv. (A), and "$20.00" for "$23.00" in subdiv. (B).

Subsec. (e): Substituted "DVHA" for "OVHA".

Subsec. (f): Substituted "shall pay to DVHA as required by section 1901 of this title" for "shall pay to OVHA as a condition of participation in the program", inserted "on all pharmaceuticals for which state-only funds are expended", and substituted "DVHA" for "OVHA".

Amendments--2009 (Sp. Sess.). Subdiv. (c)(2): Inserted "and as provided for in subdivision (d)(1) of this section" following "Medicaid".

Subdiv. (d)(1): Rewrote the subdivision.

Amendments--2007 (Adj. Sess.). Subdiv. (d)(2)(A): Act No. 192 substituted "In the case of recipients whose household income is no greater than 150 percent of the federal poverty level, such premium shall be $17.00 per month" for "$13.00 per month or $156.00 per year in the case of recipients whose household income is no greater than 150 percent of the federal poverty level".

Subdiv. (d)(2)(B): Act No. 192 substituted "In the case of recipients whose household income is greater than 150 percent of the federal poverty level and no greater than 175 percent of the federal poverty level, the premium shall be $23.00 per month" for " $17.00 per month or $204.00 per year in the case of recipients whose household income is greater than 150 percent of the federal poverty level and no greater than 175 percent of the federal poverty level".

Subdiv. (d)(2)(C): Act No. 192 substituted "In the case of recipients whose household income is greater than 175 percent of the federal poverty level and no greater than 225 percent of the federal poverty level, the premium shall be $50.00 per month" for "$35.00 per month or $420.00 per year in the case of recipients whose household income is greater than 175 percent of the federal poverty level and no greater than 225 percent of the federal poverty level".

Subsec. (f): Added by Act No. 172.

Effective date of amendments to subsecs. (a) and (b). 2019, No. 140 (Adj. Sess.), § 18(2) provides that the amendments to subsecs. (a) and (b) by 2019, No. 140 (Adj. Sess.), § 6 shall take effect on the later of January 1, 2022 or upon approval of the VPharm coverage expansion by the Centers for Medicare and Medicaid Services.

§ 2074. Repealed. 2013, No. 79, § 52(d), effective January 1, 2014.

History

Former § 2074. Former § 2074, relating to the VermontRx Program, was derived from 2005, No. 71 , § 314 and amended by 2007, No. 192 (Adj. Sess.), § 6.018; 2009, No. 1 (Sp. Sess.), § E.309.8; 2009, No. 1 56 (Adj. Sess.), § E.309.10; 2009, No. 156 (Adj. Sess.), § E.309.17; 2009, No. 156 (Adj. Sess.), § I.72; and 2011, No. 162 (Adj. Sess.), §§ E.307.1, E.307.8.

§ 2075. Assistance in enrolling in Medicare Part D.

The Agency of Human Services may act, if permissible under federal law, as an individual's agent to enroll the individual in a Medicare Part D prescription drug plan and a low-income subsidy if the individual has not enrolled prior to the application for VPharm. The Agency shall provide applicants for VPharm with information on Medicare Part D and the low-income subsidy if applicable, and on how to obtain assistance in enrolling in Medicare Part D or the subsidy.

Added 2005, No. 71 , § 314.

§ 2076. Over-the-counter and generic medications.

  1. All public pharmaceutical assistance programs shall provide coverage for those over-the-counter pharmaceuticals on the preferred drug list developed under section 1998 of this title, provided the pharmaceuticals are authorized as part of the medical treatment of a specific disease or condition, and they are a less costly, medically appropriate substitute for currently covered pharmaceuticals.
  2. All public pharmaceutical assistance programs shall comply with the provisions regarding generic drugs established in 18 V.S.A. chapter 91.
  3. DVHA shall seek any waivers of federal law, rule, or regulation necessary to implement the provisions of this section.

    Added 2005, No. 71 , § 314; amended 2009, No. 156 (Adj. Sess.), § I.73.

History

Amendments--2009 (Adj. Sess.) Subsec. (c): Substituted "DVHA" for "OVHA".

§ 2077. Administration.

  1. The programs established under this subchapter shall be designed to provide maximum access to program participants, to incorporate mechanisms that are easily understood and require minimum effort for applicants and health care providers, and to promote quality, efficiency, and effectiveness through cost controls and utilization review. Applications may be filed at any time and shall be reviewed annually. DVHA may contract with a fiscal agent for the purpose of processing claims and performing related functions required in the administration of the pharmaceutical programs established under this subchapter.
  2. Upon determining that an applicant is eligible under this subchapter, DVHA shall issue an identification card to the applicant.
  3. A pharmacy that dispenses a pharmaceutical to an individual eligible for a pharmaceutical program established under this subchapter shall collect payment for the pharmaceutical from DVHA.

    Added 2005, No. 71 , § 314; amended 2009, No. 1 (Sp. Sess.), § E.309.1; 2009, No. 1 56 (Adj. Sess.), § I.74.

History

Amendments--2009 (Adj. Sess.) Substituted "DVHA" for "OVHA" in subsecs. (a)-(c).

Amendments--2009 (Sp. Sess.). Subsec. (a): Added the present second sentence.

§ 2078. Education and outreach.

The Department of Disabilities, Aging, and Independent Living shall conduct ongoing education and outreach to inform Vermonters who are elders and Vermonters with disabilities of the benefits they may be entitled to pursuant to this subchapter, make available information concerning pharmaceutical assistance programs, and minimize any confusion and duplication of pharmaceutical coverage resulting from a multiplicity of pharmaceutical programs.

Added 2005, No. 71 , § 314; amended 2013, No. 96 (Adj. Sess.), § 211.

History

Amendments--2013 (Adj. Sess.). Substituted "Vermonters who are elders" for "elderly Vermonters" following "inform".

§ 2079. Construction.

The benefits provided by the pharmaceutical assistance programs established under this subchapter constitute medical services for purposes of section 141 of this title.

Added 2005, No. 71 , § 314.

§ 2080. Vermont Prescription Drug Pricing and Consumer Protection Program.

The Secretary of Human Services shall administer this subchapter in conformity with the Pharmacy Best Practices and Cost Control Program established under subchapter 5 of this chapter to enable the citizens of Vermont to purchase necessary prescription pharmaceuticals at the lowest possible price, to ensure access to such pharmaceuticals, and to support Vermont pharmacies, consistent with the time frames, standards, and procedures established by the General Assembly.

Added 2005, No. 71 , § 314.

§ 2081. Rules and legislative oversight.

  1. The Agency of Human Services shall adopt rules necessary to implement and administer the provisions of this subchapter, including standards and schedules establishing coverage and exclusion of pharmaceuticals and maximum quantities of pharmaceuticals to be dispensed, and to comply with the requirements of the Medicare Modernization Act. The Agency of Human Services shall submit the proposed rule to the Health Care Oversight Committee. The Health Care Oversight Committee shall review and advise on the Agency rules and policies developed under this subsection and shall submit for consideration any recommendations to the joint Legislative Committee on Administrative Rules.
  2. DVHA shall report on the status of the pharmaceutical assistance programs established by this subchapter to the Health Care Oversight Committee.

    Added 2005, No. 71 , § 314; amended 2009, No. 156 (Adj. Sess.), § I.75; 2011, No. 171 (Adj. Sess.), § 41c.

History

Amendments--2011 (Adj. Sess.). Substituted "health care oversight committee" for "health access oversight committee" throughout the section.

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "DVHA" for "OVHA".

Subchapter 9. Coverage for Additional Populations

§ 2091. Dr. Dynasaur-like coverage; legislative intent.

In establishing Dr. Dynasaur-like coverage for children and pregnant individuals who are not eligible for the Dr. Dynasaur program because of their immigration status, it is the intent of the General Assembly that the hospital, medical, dental, and prescription drug benefits and eligibility criteria for the coverage set forth in section 2092 of this chapter should align to the greatest extent practicable with the benefits and eligibility criteria of the Dr. Dynasaur program.

Added 2021, No. 48 , § 1, eff. June 1, 2021.

History

Agency of Human Services; outreach and provider grants; implementation; appropriation. 2021, No. 48 , § 2 provides: "To the extent that applicable funds are appropriated in the fiscal year 2022 budget, the Agency of Human Services shall use them for the following purposes:

"(1) Grants or reimbursements, or both, to health care providers for delivering health care services during fiscal year 2022 to children and pregnant individuals who have an immigration status for which Medicaid coverage is not available.

"(2) Grants to Vermont organizations that work with members of Vermont's undocumented immigrant community or with members of the health care provider community to provide culturally and linguistically appropriate outreach and information regarding opportunities for children and pregnant individuals in Vermont who have an immigration status for which Medicaid coverage is not available to access health care services at low or no cost in fiscal year 2022 and thereafter. The outreach and information shall include information on the confidentiality of records pertaining to applicants and enrollees.

"(3) Implementing the technological and operational processes necessary for the Department of Vermont Health Access to administer the coverage for Vermont residents who have an immigration status for which Medicaid coverage is not available as set forth in 33 V.S.A. § 2092 beginning on July 1, 2022."

§ 2092. Dr. Dynasaur-like coverage for certain Vermont residents.

  1. As used in this section, the term "Vermont residents who have an immigration status for which Medicaid coverage is not available" includes migrant workers who are employed in seasonal occupations in this State.
  2. The Agency of Human Services shall provide hospital, medical, dental, and prescription drug coverage equivalent to coverage in the Vermont Medicaid State Plan to the following categories of Vermont residents who have an immigration status for which Medicaid coverage is not available and who are otherwise uninsured:
    1. children under 19 years of age whose household income does not exceed the income threshold for eligibility under the Vermont Medicaid State Plan; and
    2. pregnant individuals whose household income does not exceed the income threshold for eligibility under the Vermont Medicaid State Plan for coverage during their pregnancy and for postpartum coverage equivalent to that available under the Vermont Medicaid State Plan.
  3. The confidentiality provisions set forth in section 1902a of this chapter shall apply to all applications submitted and records created pursuant to this section, except that the Agency of Human Services shall not make any information regarding applicants or enrollees available to the United States government.
  4. The Agency of Human Services may adopt rules in accordance with 3 V.S.A. chapter 25 to carry out the purposes of this section.

    Added 2021, No. 48 , § 1, eff. June 1, 2021.

History

Effective date. 2021, No. 48 , § 4(b) provides: "The remaining sections shall take effect on passage [June 1, 2021], with the Agency of Human Services making coverage available to Vermont residents who have an immigration status for which Medicaid coverage is not available in accordance with Sec. 1 (33 V.S.A. § 2092) beginning on July 1, 2022, subject to fiscal year 2023 appropriations for this purpose."

CHAPTER 21. GENERAL ASSISTANCE

Sec.

Cross References

Cross references. Vermont pharmaceutical assistance programs, see chapter 19, subchapter 8 of this title.

Medicare and general assistance beneficiaries; balance billing, see chapter 65 of this title.

§ 2101. Definitions.

As used in this chapter:

  1. "Commissioner" means the Commissioner for Children and Families.
  2. "Family" means persons whom the recipient of General Assistance is required by law to support.
  3. "Found" means discovered, come upon, chanced upon, or met with by accident.
  4. "General Assistance" means financial aid to provide the necessities of life, including food, clothing, shelter, fuel, electricity, medical care, and other items as the Commissioner may prescribe by rule, when a need is found to exist and the applicant is otherwise found eligible.
  5. "House" means a structure in which people live, including a hospital.
  6. "Offense" means any act that gives rise to a cause of action in which the offender is committed to jail, excluding criminal acts.
  7. "Relief or relieving" means General Assistance limited to medical assistance and other assistance required in connection with medical assistance, but excluding financial assistance.
  8. "Reside" means having a domicile.
  9. "Residence" means a person's domicile.
  10. "Transient" means an individual who does not intend to establish a permanent residence within the State of Vermont.

    Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 1971, No. 176 (Adj. Sess.), § 1; 1973, No. 207 (Adj. Sess.), § 1; 2011, No. 63 , § E.321.2; 2013, No. 131 (Adj. Sess.), § 49, eff. May 20, 2014; 2021, No. 20 , § 308.

History

Amendments--2021 Intro. para.: Substituted "As used in this chapter" for "Unless otherwise expressly provided, the words and phrases in this chapter mean".

Subdiv. (4): Substituted "rule" for "regulation".

Subdiv. (5): Substituted "in which" for "wherein".

Subdiv. (6): Substituted "in which" for "whereby".

Subdiv. (7): Substituted "with medical assistance" for "therewith".

Amendments--2013 (Adj. Sess.). Subdiv. (1): Rewrote the subdivision.

Amendments--2011. Subdiv. (1): Substituted "agency of human services" for "department" and "secretary" for "commissioner".

Amendments--1973 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Subdiv. (9): Substituted "district welfare director" for definition of "welfare officer".

Prior law. 33 V.S.A. § 3001.

§ 2102. Repealed. 2015, No. 71 (Adj. Sess.), § 3.

History

Former § 2102. Former § 2102, relating to appointment, duties, compensation of town service officer, was derived from 1967, No. 147 , § 7 and amended by 1971, No. 176 (Adj. Sess.), § 2.

Annotations From Former § 2102

1. Status.

Town service officers are not employees of the department of social welfare. 1972-74 Op. Atty. Gen. 244.

2. Investigations.

Town service officers' investigative powers under this section relate only to activities involved in General Assistance, and unless specified elsewhere in the welfare code, the officers' duties are limited to the General Assistance program, so that the officers may not investigate categorical and food stamp applications. 1972-74 Op. Atty. Gen. 244.

3. Confidential information.

Town service officers cannot be privy to confidential Department of Social Welfare information, including categorical recipient information. 1972-74 Op. Atty. Gen. 244.

§ 2103. Eligibility.

  1. Consistent with available appropriations, the Department for Children and Families shall furnish General Assistance under this chapter, except as provided in this section, to any otherwise eligible individual unable to provide the necessities of life for the individual and for those whom the individual is legally obligated to support. Except for those in catastrophic situations as defined in rules, no General Assistance shall be provided in the following situations:
    1. to any individual whose income from any source, including the Department for Children and Families, during the 30 days immediately preceding the date on which assistance is sought is equal to the General Assistance eligibility standard;
    2. to any able-bodied individual without minor dependents included in his or her application.
  2. Eligibility standards for General Assistance as established by the Commissioner need not be the same as those applicable to the Department's categorical assistance programs. In addition, in determining eligibility, the Commissioner, pursuant to rule, may take into account payment to or for the benefit of the applicant under any Department program.
  3. It is further provided that in determining eligibility apart from the need standard, the Commissioner may adopt a reasonable standard pertaining to work-related efforts on the part of the applicant.
  4. Except for relief as provided in sections 2109-2112 of this chapter, General Assistance to transients shall be limited to that necessary to permit the transient to leave the State.
  5. As used in this section, "able-bodied individual" does not include a person subject to such conditions as are determined, by rule of the Commissioner for Children and Families, to constitute barriers to employment.
  6. [Repealed.]

    Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 1973, No. 152 (Adj. Sess.), § 25, eff. April 14, 1974; 1973, No. 207 (Adj. Sess.), § 3; 1975, No. 132 (Adj. Sess.), § 1, eff. Feb. 5, 1976; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 107; 2013, No. 133 (Adj. Sess.), § 1, eff. May 20, 2014; 2021, No. 20 , § 309.

History

Reference in text. The reference to § 2112 contained in the phrase "sections 2109-2112 of this chapter", referred to in subsec. (d), was repealed by 2015, No. 71 (Adj. Sess.), § 6.

Revision note. Substituted "sections 2109-2112 of this chapter" for "subchapter 2 of this chapter" in subsec. (d) in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments--2021 Subsec. (a): In the first sentence, substituted "in this section" for "below" and "the individual" for "he or she"; and substituted "rules" for "regulations" in the second sentence.

Subsec. (b): Substituted "rule" for "regulation" in the second sentence.

Subsec. (c): Substituted "adopt" for "promulgate."

Subsec. (e): Substituted "rule" for "regulation".

Amendments--2013 (Adj. Sess.). Subsec. (f): Added.

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "for children and families" for "of prevention, assistance, transition, and health access"; inserted "or she" following "he"; and substituted "the individual" for "himself".

Subdiv. (a)(1): Substituted "for children and families" for "of prevention, assistance, transition, and health access" following "department".

Subsec. (e): Substituted "for children and families" for "of prevention, assistance, transition, and health access" following "commissioner".

Amendments--1999 (Adj. Sess.). Subsec. (a): Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare" in the introductory paragraph and in subdiv. (1).

Subsec. (e): Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare".

Amendments--1975 (Adj. Sess.). Section amended generally.

Amendments--1973 (Adj. Sess.). Act No. 152 substituted "this title" for "the welfare code".

Act No. 207 amended section generally.

Prospective repeal of subsec. (f). 2013, No. 133 (Adj. Sess.), § 2 provides for the repeal of subsec. (f) effective July 1, 2018.

Emergency heating fuel or utility services. 1985, No. 242 (Adj. Sess.), § 140, provided: "Notwithstanding the provisions of Title 33, V.S.A., Section 3004(a)(1) and (2) [subdivs. (a)(1) and (a)(2) of this section], the commissioner of social welfare shall use funds appropriated to the general assistance program for grants to persons with an emergency need for heating fuel or utility services which are necessary to provide heat to the applicant's residence."

Drug conviction records. 1997, No. 147 (Adj. Sess.), § 270, provided: "Notwithstanding any other provision of law and unless otherwise prohibited by federal law, as a condition of receipt of assistance all applicants or recipients of assistance or benefits from the department of social welfare shall be required to provide information relating to the conviction, after August 22, 1996, of a felony involving the possession, use or distribution of a controlled substance of any member of a household for whom assistance or services would be provided.

"Notwithstanding any other provision of law, the commissioner of social welfare may obtain from the Vermont Crime Information Center the record of convictions occurring after August 22, 1996, of any person to the extent that the commissioner has determined, according to criteria established by rule, that such information is necessary to confirm or refute that a felony conviction related to a controlled substance has occurred."

Prior law. 33 V.S.A. § 3004.

ANNOTATIONS

1. Limitations.

Necessity postulates that the providing of general welfare assistance funds for decent housing must be limited by the availability of appropriated funds, and a regulation interpreted as doing this, within reasonable bounds, must be upheld as a proper exercise of the administrative function. Caldwell v. Department of Social Welfare, 134 Vt. 96, 353 A.2d 336 (1976).

Cited. Vigario v. Department of Social Welfare, 140 Vt. 100, 436 A.2d 768 (1981).

§ 2104. Application or information.

  1. A person may apply for General Assistance to the person or persons designated for that purpose by the Commissioner.
  2. When a person designated by the Commissioner pursuant to subsection (a) of this section receives an application for General Assistance or is informed that a person is in need of General Assistance the person so designated shall investigate and make a determination as to the applicant's eligibility for General Assistance, and provide under rules of the Department emergency assistance as may be required.

    Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 1971, No. 176 (Adj. Sess.), § 3; 2013, No. 131 (Adj. Sess.), § 50, eff. May 20, 2014; 2021, No. 20 , § 310.

History

Amendments--2021 Subsec. (b): Substituted "the person so designated" for "he or she" and "rules" for "regulations".

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--1971 (Adj. Sess.). Subsec. (a): Substituted "district welfare director" for "welfare officer".

Subsec. (b): Substituted "district welfare director" for "welfare officer", inserted "and make a determination as to the applicant's eligibility for general assistance" following "investigate" in the first sentence, and added the second sentence.

Prior law. 33 V.S.A. § 3005.

§ 2105. Action on application or information.

The Commissioner shall cause an investigation and record to be made of the circumstances of the person alleged to need General Assistance to determine whether the person is eligible. Information shall be sought as to the residence of the person, his or her age, physical condition, earnings or other income, ability to be gainfully employed of all members of his or her family, the cause of the person's condition, the ability and willingness of persons legally liable for his or her support to assist, and other relevant facts.

Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 1971, No. 176 (Adj. Sess.), § 4.

History

Amendments--1971 (Adj. Sess.). Deleted "except in cases of emergency assistance" preceding "commissioner" in the first sentence.

Prior law. 33 V.S.A § 3006.

§ 2106. Limitation on liability for medical assistance.

The State shall not be liable for medical or surgical care furnished to any person eligible for General Assistance unless the Department agrees to it. This section shall not apply to hospitals.

Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 1973, No. 207 (Adj. Sess.), § 4; 2015, No. 71 (Adj. Sess.), § 4.

History

Amendments--2015 (Adj. Sess.). Deleted the former second sentence.

Amendments--1973 (Adj. Sess.). Deleted "providing care furnished to transient persons" following "hospitals" in the third sentence.

Prior law. 33 V.S.A. § 3007.

§ 2107. Disqualification.

  1. When the Commissioner or a person designated by the Commissioner pursuant to section 2104 of this title has reason to believe that an applicant for or recipient of General Assistance came into the State for the purpose of receiving General Assistance, he or she may find the applicant or recipient ineligible for General Assistance.
  2. Notwithstanding the provisions of subsection (a) of this section, an applicant in immediate need of General Assistance for himself or herself or a person dependent upon him or her shall be granted General Assistance on an emergency basis, which may include the furnishing of transportation to the nearest boundary of this State in the direction in which he or she desires to go to leave the State.

    Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 1971, No. 176 (Adj. Sess.), § 5; 2013, No. 131 (Adj. Sess.), § 51, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "Commissioner or a person designated by the Commissioner pursuant to section 2104 of this title" for "town service officer or district welfare director or the commissioner" following "When the", and ", he or she" for "they" following "general assistance".

Amendments--1971 (Adj. Sess.). Subsec. (a): Inserted "the town service officer or district welfare director or" following "when the" and substituted "they" for "the commissioner" preceding "may find".

Subsec. (b): Substituted "to the nearest boundary of this state in the direction in which he desires to go to leave the state" for "to the place from where he came into the state" following "transportation".

Prior law. 33 V.S.A. § 3008.

§ 2108. Residential weatherization for fuel assistance recipients.

  1. Recipients of emergency heating fuel or emergency aid for utility services, which are provided under the General Assistance Program, and any other federal fuel assistance programs, shall receive a form that they may sign to request that their names and addresses be made available as potential recipients of Home Energy Audits and Weatherization Programs.
  2. The Commissioner by rule shall specify the names of organizations eligible to receive a list of the names and addresses of persons signing the consent form established in subsection (a) of this section.

    Added 1981, No. 25 .

History

Prior law. 33 V.S.A. § 3009.

§ 2109. Relief by private persons and hospitals.

  1. Except as provided in subsection (c) of this section, when a person, including a transient, is injured, suddenly taken sick or lame, or is otherwise disabled and confined to a house or hospital in this State, and is in need of relief, the person at whose house or hospital he or she is shall be at the expense of relieving and supporting the person until notice in writing of the situation of the person is given to the Department, after which the Department shall provide for the relief and support of the person.
  2. Except as provided in subsection (c) of this section, in the case of a hospital, the notice required in subsection (a) of this section shall be supplemented, as soon as reasonably possible, with a plan or proposed method of collecting from the person for relief and care and other pertinent information requested by the Department. In the case of a person, after giving notice required in subsection (a) of this section, he or she shall file additional information with the Department on a form prescribed by the Commissioner.
  3. The Commissioner may provide by rule for an exemption from the notice and report requirements of subsections (a) and (b) of this section in the case of a hospital that makes and observes satisfactory arrangements considered adequate by the Commissioner. When so exempted, the provisions of subsection 2110(b) of this chapter shall not apply.

    Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 1969, No. 126 , § 2; 1973, No. 207 (Adj. Sess.), § 5; 2013, No. 131 (Adj. Sess.), § 52, eff. May 20, 2014; 2021, No. 20 , § 311.

History

Revision note. Substituted "the second sentence of section 2110" for "the last sentence of section 2110" in the second sentence of subsec. (c) to conform the language to the text of that section as amended by 1975, No. 254 (Adj. Sess.), § 148.

Amendments--2021 Subsec. (c): In the first sentence, substituted "rule" for "regulation" and "that" for "which"; and substituted "subsection" for "second sentence of section" in the second sentence.

Amendments--2013 (Adj. Sess.). Subsec. (b): Inserted "of this section" twice.

Amendments--1973 (Adj. Sess.). Section amended generally.

Amendments--1969. Subsec. (b): Substituted "person" for "transient" preceding "for relief" in the first sentence and deleted "or a jailer" following "person" in the second sentence.

Prior law. 33 V.S.A. § 3025.

§ 2110. Reimbursement for relief expenditures.

  1. If the Department fails to provide relief for a person, including a transient, the person or hospital relieving him or her may recover for the relief provided in an action on this statute against the State of Vermont.
  2. Notwithstanding (a) of this section, no recovery may be had for any period in excess of 72 hours before notice is given to the Department if the plaintiff has failed to timely file the information required under subsection 2109(b) of this title.
  3. This section shall only be operative to the extent that funds are appropriated for it by the General Assembly.

    Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 1969, No. 126 , § 3; 1973, No. 207 (Adj. Sess.), § 6; 1975, No. 254 (Adj. Sess.), § 148; 2021, No. 20 , § 312.

History

2008. Substituted "subsection 2109(b)" for "subsection (b) of section 2109" for purposes of clarity and to conform reference to V.S.A. style.

Amendments--2021 Section amended generally.

Amendments--1975 (Adj. Sess.). Added the last sentence.

Amendments--1973 (Adj. Sess.). Section amended generally.

Amendments--1969. Deleted "or jailer" following "hospital" in the first sentence.

Prior law. 33 V.S.A. § 3027.

§ 2111. Death.

When a person, including a transient, dies in the State in other than a State institution and no one appears to make funeral arrangements, the person in charge thereof shall report the death of the person to the nearest Economic Services Division office.

Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 1969, No. 130 , § 1, eff. Oct. 1, 1968; 1973, No. 207 (Adj. Sess.), § 7; 2015, No. 71 (Adj. Sess.), § 5.

History

Amendments--2015 (Adj. Sess.). Substituted "Economic Services Division office" for "welfare officer or town service officer" at the end of the section.

Amendments--1973 (Adj. Sess.). Section amended generally.

Amendments--1969. Deleted the second sentence.

Prior law. 33 V.S.A. § 3028.

Cross References

Cross references. Burials at public expense, see chapter 23 of this title.

§ 2112. Repealed. 2015, No. 71 (Adj. Sess.), § 6.

History

Former § 2112. Former § 2112, relating to persons needing relief in place other than house, hospital, or jail, was derived from 1967, No. 147 , § 7 and amended by 1973, No. 207 (Adj. Sess.), § 8.

§ 2113. Action for recovery of expenditures.

Whenever a person who has received General Assistance from the Department owns or thereafter acquires real or personal property or an interest in real or personal property or becomes employed, the Department on behalf of the State of Vermont may recover on this statute against the person the amount the Department has expended for General Assistance furnished to the person or the person's family. If the person is deceased, the amount expended by the Department shall be allowed as a claim against the person's estate as a debt due the State. All statutory exemptions shall apply in the civil action. Statutes of limitations shall not be a defense or bar a debt due the State.

Added 1967, No. 147 , § 7, eff. Oct. 1, 1968; amended 2021, No. 20 , § 313.

History

Amendments--2021 Section amended generally.

Prior law. 33 V.S.A. § 3075.

ANNOTATIONS

Analysis

1. Recovery of funeral expenses.

Notwithstanding any statutory or common law obligations, legal liability for funeral expenses in any particular case, in the face of a denial thereof by a presumably liable relative, becomes a judicial question which will require a considerable time to resolve; accordingly, public authority may arrange and pay funeral expenses in such cases and an action for recovery should then be instituted under this section. 1968-70 Op. Atty. Gen. 215.

2. Rules.

An apparent conflict exists between first and second paragraphs of a regulation of the Department of Social Welfare promulgated to effectuate statute authorizing the State to recover General Assistance payments wherever a person subsequently acquires property or becomes employed, making application of the plain meaning rule inapposite to determine whether the State may recover General Assistance payments made more than two years prior to the date of a Supplemental Security Income (SSI) award. Slocum v. Department of Social Welfare, 154 Vt. 474, 580 A.2d 951 (1990).

§ 2114. Rental or Mortgage Arrearage Program.

  1. The Department for Children and Families shall provide up to three months of rental or mortgage arrearage assistance to eligible families. Assistance under this section is not an entitlement and shall be limited to the funds appropriated.
  2. As used in this section:
    1. "Disability" means:
      1. that an individual is receiving Medicaid, disability insurance benefits under the Social Security Act (SSI or SSDI), or Medicare based on a determination of disability;
      2. a physical or mental impairment that substantially limits one or more major life activities of the individual or a record of such an impairment; or
      3. a physical or mental impairment that prevents an individual from working for at least 30 days as verified by a signed statement from a physician or licensed practitioner.
    2. "Extraordinary event" means a serious situation, occurrence, or emergency that either:
      1. happens unexpectedly and demands immediate attention, including an unanticipated need for a work-related expense necessary to preserve employment or for housing expenses required to remove life-threatening hazards or to keep the home habitable; or
      2. leads to additional expenses or loss of income that could not have been prevented by the family, including a death or illness of a family member.
    3. "Gross housing expenses" includes the family's rent or mortgage, insurance that is required as part of the mortgage, property taxes, condominium fees, and utility costs, including fuel, electricity, water, basic telephone service, and sewer, but excluding television service.
    4. "Income" shall be calculated using the Emergency Assistance rules, including the rules relating to deductions and exemptions.
  3. A family is eligible if:
    1. The family includes at least one dependent child.
      1. The family is in imminent danger of losing its housing due to circumstances that could not reasonably have been avoided, including: (2) (A) The family is in imminent danger of losing its housing due to circumstances that could not reasonably have been avoided, including:
        1. the rent or mortgage payments were not made because the family experienced an extraordinary event that appropriately required the use of the funds;
        2. a family member has a disability that contributed to the circumstances that could not reasonably have been avoided and resulted in the rent or mortgage payments not being made; or
        3. the family's essential expenses exceeded the family's income or the family's gross housing expenses were equal to or greater than 60 percent of the family's income.
      2. The family is likely to be eligible for temporary housing assistance, and payment under this section would be more cost-effective than providing temporary housing.
    2. The payment of all or a portion of that arrearage will prevent, not merely postpone, homelessness.
    3. The family has received a notice of rental termination for nonpayment of rent or a sworn statement of the amount of rent owed from the landlord, or a mortgage demand notice from the mortgage holder.
    4. The landlord or mortgage holder agrees to terminate any action intended to evict or otherwise cause the family to relocate as a result of the payment and agrees not to reinstitute such action on the basis of obligations remaining as of the date of payment.
    5. The family meets all other criteria for Emergency Assistance, except that prior receipt of Emergency Assistance for another purpose shall not disqualify the family for assistance under this section. Assistance under this section shall be available not more than once every 12 months.

      Added 2005, No. 215 (Adj. Sess.), § 140; amended 2015, No. 23 , § 58.

History

Reference in text. Disability benefits under the Social Security Act, referred to in subdiv. (b)(1)(A), are provided under the Supplemental Security Income (SSI) program, codified at 42 U.S.C. § 1381 et seq., and the Social Security Disability Insurance (SSDI) program, codified at 42 U.S.C. § 401 et seq.

2013. - Substituted "As used in" for "For the purposes of" in subsec. (b) to conform with V.S.A. style.

Amendments--2015. Subsec. (c): Made a minor stylistic change in subdiv. (2)(a)(iii).

§ 2115. General Assistance program report.

On or before September 1 of each year, the Commissioner for Children and Families shall submit a written report to the Joint Fiscal Committee; the House Committees on Appropriations, on General, Housing, and Military Affairs, and on Human Services; and the Senate Committees on Appropriations and on Health and Welfare. The report shall contain the following:

  1. an evaluation of the General Assistance program during the previous fiscal year;
  2. any recommendations for changes to the program;
  3. a plan for continued implementation of the program;
  4. statewide statistics using deidentified data related to the use of emergency housing vouchers during the preceding State fiscal year, including demographic information, client data, shelter and motel usage rates, clients' primary stated cause of homelessness, average lengths of stay in emergency housing by demographic group and by type of housing; and
  5. other information the Commissioner deems appropriate.

    Added 2015, No. 131 (Adj. Sess.), § 9; amended 2017, No. 85 , § E.321.2.

History

Amendments--2017. Section amended generally.

CHAPTER 23. BURIALS AT PUBLIC EXPENSE

Sec.

§ 2301. Burial responsibility.

    1. When a person dies in this State, or a resident of this State dies within the State or elsewhere, and the decedent was a recipient of assistance under Title IV or XVI of the Social Security Act, or nursing home care under Title XIX of the Social Security Act, or assistance under State aid to the aged, blind, or disabled, or an honorably discharged veteran of any branch of the U.S. Armed Forces to the extent funds are available and to the extent authorized by Department rules, the decedent's burial shall be arranged and paid for by the Department if the decedent was without sufficient known assets to pay for burial. The Department shall pay burial expenses for individuals that meet the requirements of this section in an amount not to exceed a maximum established by rule and shall establish by rule a process for reducing the maximum payment amount by the amount of other assets available from the decedent's estate or from the decedent's spouse to pay for the burial. The maximum payment by the Department does not preclude other individuals from paying for or receiving contributions to pay for additional disposition expenses. (a) (1)  When a person dies in this State, or a resident of this State dies within the State or elsewhere, and the decedent was a recipient of assistance under Title IV or XVI of the Social Security Act, or nursing home care under Title XIX of the Social Security Act, or assistance under State aid to the aged, blind, or disabled, or an honorably discharged veteran of any branch of the U.S. Armed Forces to the extent funds are available and to the extent authorized by Department rules, the decedent's burial shall be arranged and paid for by the Department if the decedent was without sufficient known assets to pay for burial. The Department shall pay burial expenses for individuals that meet the requirements of this section in an amount not to exceed a maximum established by rule and shall establish by rule a process for reducing the maximum payment amount by the amount of other assets available from the decedent's estate or from the decedent's spouse to pay for the burial. The maximum payment by the Department does not preclude other individuals from paying for or receiving contributions to pay for additional disposition expenses.
    2. The Department shall notify the directors of all funeral homes within the State and within close proximity to the State's borders of its rules with respect to those services for which it pays and the amount of payment authorized for those services. All payments shall be made directly to the appropriate funeral director. In order to receive payment under this section, the funeral director shall provide the Department and the party making the funeral arrangements with an itemized invoice for the specific services that are to be provided at public expense.
    3. As a condition of payment when arrangements are made other than by the Department, the funeral director shall determine from the person making the arrangements if the decedent was a recipient of assistance or an eligible veteran as specified in subdivision (1) of this subsection, and if the decedent was such a recipient, give notice to the person making the arrangements of the Department's rules.
    4. If the funeral home director does not advise the person making the arrangements of the Department's rules, then that person shall not be liable for expenses incurred.
  1. When a person dies while an inmate of a State institution and the inmate is without sufficient known assets to pay for burial, the burial shall be arranged and paid for by the State institution.
  2. In all other cases, the Department shall arrange for and pay up to the maximum amount established by rule for the burial of eligible persons who die in this State or residents of this State who die within the State or elsewhere when the persons are without sufficient known assets to pay for their burial.
  3. As used in this chapter:
    1. "Burial" means the final disposition of human remains, including interring or cremating a decedent and the ceremonies directly related to that cremation or interment at the gravesite.
    2. "Department" means the Department for Children and Families.
    3. "Funeral" means the ceremonies prior to burial by interment, cremation, or other method.

      Added 1967, No. 147 , § 8, eff. Oct. 1, 1968; amended 1969, No. 130 , § 2, eff. Oct. 1, 1968; 1973, No. 152 (Adj. Sess.), § 33, eff. April 14, 1974; 1973, No. 207 (Adj. Sess.), § 9; 1983, No. 216 (Adj. Sess.), §§ 1, 2; 2003, No. 30 , § 1; 2009, No. 156 (Adj. Sess.), § E.321.1; 2011, No. 162 (Adj. Sess.), § E.321.1; 2013, No. 131 (Adj. Sess.), § 53, eff. May 20, 2014; 2021, No. 20 , § 314.

History

Reference in text. Title IV, XVI, and XIX of the Social Security Act, referred to in subdiv. (a)(1), are codified as 42 U.S.C. §§ 601 et seq., 1381 et seq., and 1396 et seq., respectively.

2013. - In subsec. (d), substituted "As used in" for "For the purpose of" to conform with V.S.A. style.

Substituted "subdivision (a)(1)" for "section (a)(1)" in subdiv. (a)(3)(A) and "subsection (a) or (b)" for "(a) or (b)" in subsec. (c) to conform references to V.S.A. style.

Amendments--2021 Subsec. (d): Amended generally.

Amendments--2013 (Adj. Sess.). Subsec. (d): Inserted "'Department' means the Department for Children and Families;" following "gravesite;".

Amendments--2011 (Adj. Sess.). Deleted former subsec. (c) and redesignated former subsecs. (d) and (e) as present subsecs. (c) and (d).

Amendments--2009 (Adj. Sess.) Section amended generally.

Amendments--2003. Subdiv. (a)(1): Inserted "or an honorably discharged veteran of any branch of the U.S. military forces" following "blind or disabled", substituted "The" for "As provided herein, the" at the beginning of the second sentence, substituted "the decedent's" for "his" following "department regulations" and substituted "the decedent" for "he" following "by the department".

Subdiv. (a)(1)(A): Added "or an eligible veteran" following "recipient of assistance" and substituted "of this section" for "above".

Subsec. (b): Substituted "the inmate" for "he", deleted "his" preceding "burial" and substituted "the" for "his" following "burial".

Subsec. (c): Substituted "of this section" for "above", deleted "his" preceding "domicile" and substituted "the" for "his" preceding "burial".

Amendments--1983 (Adj. Sess.). Subsec. (f): Added.

Subsec. (g): Added.

Amendments--1973 (Adj. Sess.) Subsec. (a): Amended generally by No. 207.

Subsecs. (b)-(d): Reenacted by No. 207.

Subsec. (e): Added by No. 152 and omitted by No. 207.

Amendments--1969 Section amended generally.

Prior law. 33 V.S.A. § 3101.

ANNOTATIONS

Analysis

1. Purpose.

The purpose of this section is to assign the responsibility for the burial of certain persons, including recipients of certain kinds of assistance, residents of State institutions, and those without sufficient assets to pay for their own funerals. Vigario v. Department of Social Welfare, 140 Vt. 100, 436 A.2d 768 (1981).

2. Construction.

Requirement to furnish reasonable funeral expenses for burial was mandatory within the limitations provided. 1938-40 Op. Atty. Gen. 298.

3. Construction with other laws.

Payments under this section are not welfare type benefits for a person such as a relative of a deceased person who arranges for and makes payments for the burial, as evidenced by the fact that only the status of the decedent, and not the status of the person arranging the burial, is considered in determining whether or not payments shall be made; therefore, the payments do not constitute "assistance" or "benefits" for purposes of section 3091 of Title 3, which provides applicant or recipient for "assistance" or "benefits" with right to hearing before Human Services Board. Vigario v. Department of Social Welfare, 140 Vt. 100, 436 A.2d 768 (1981).

In some cases, payments by the Department of Social Welfare under this section may help to defray the funeral expenses paid by the relatives of a deceased person when they arrange for burial, but this does not make relatives recipients of assistance or benefits under section 3091 of Title 3, which provides applicants or recipients of assistance or benefits right to hearing before Human Services Board, since any financial benefit to relatives of deceased is only incidental for purpose of this section. Vigario v. Department of Social Welfare, 140 Vt. 100, 436 A.2d 768 (1981).

Where relative of decedent who was entitled to benefits under this section instituted claim for reimbursement of expenses which she had incurred in connection with burial of decedent, since she was not entitled to payment under this section, she was not an applicant for assistance or benefits within the meaning of section 3091 of Title 3, conferring the right to a hearing before the Human Services Board, and the Board therefore lacked jurisdiction to hear her claim. Vigario v. Department of Social Welfare, 140 Vt. 100, 436 A.2d 768 (1981).

4. Burials.

Under this section, when a person dies, immediate action to authorize burial should be taken by public officials unless, at that time, they have knowledge that the deceased had sufficient assets or they have knowledge of relatives legally liable for the costs or of some other person who is willing to assume responsibility. 1968-70 Op. Atty. Gen. 215.

5. Expenses .

The expenses of a funeral should not exceed the amount specified in this section, if the Commissioner of Social Welfare was to grant assistance subject to the rights of friends or family to contribute a burial vault or provide for cremation in addition. 1954-56 Op. Atty. Gen. 64.

*6. Items covered.

The reasonable expense for casket, hearse, opening and closing of a grave, clothing for the deceased, etc., would be proper items for inclusion in funeral expenses. 1954-56 Op. Atty. Gen. 58.

*7. Payment.

Under this section, the only parties eligible to receive payments from the Department of Social Welfare are funeral directors and towns required to arrange for burials for persons without assets; daughter of person eligible for payment of funeral expenses by Department could not receive payments under this section. Vigario v. Department of Social Welfare, 140 Vt. 100, 436 A.2d 768 (1981).

This section is to be given literal interpretation and payment of burial expenses must be made upon certification by the proper agency that there are no known assets, etc., at the time the need for the funeral arrangements arises. 1968-70 Op. Atty. Gen. 215.

§ 2302. Repealed. 2013, No. 32, § 1.

History

Former § 2302. Former § 2302, relating to the use for advancement of anatomical science, was derived from 1967, No. 147 , § 8 and amended by 1969, No. 53 , § 10 and 2009, No. 119 (Adj. Sess.), § 8

CHAPTER 25. HOME WEATHERIZATION ASSISTANCE PROGRAM

Sec.

§ 2501. Home Weatherization Assistance Fund.

  1. There is created in the State Treasury a fund to be known as the Home Weatherization Assistance Fund to be expended by the Director of the State Office of Economic Opportunity in accordance with federal law and this chapter.
  2. The Fund shall be composed of the receipts from the gross receipts tax on retail sales of fuel imposed by section 2503 of this title, such funds as may be allocated from the Oil Overcharge Fund, such funds as may be allocated from the federal Low Income Energy Assistance Program, such funds as may be deposited or transferred into the Fund by the Vermont Low Income Trust for Electricity, and such other funds as may be appropriated by the General Assembly.
  3. All balances in the Fund at the end of any fiscal year shall be carried forward and remain part of the Fund. Interest earned by the Fund shall be deposited into the Fund. Disbursements from the Fund shall be made by the State Treasurer on warrants drawn by the Commissioner of Finance and Management. Disbursements may be made from the Fund only to support the programs established by this chapter or otherwise as authorized by this chapter.

    Added 1989, No. 272 (Adj. Sess.), § 1; amended 1991, No. 262 (Adj. Sess.), § 2; 2007, No. 92 (Adj. Sess.), § 30; 2019, No. 62 , § 4.

History

2013. Deleted "Trust” from "Home Weatherization Assistance Trust Fund” in the section heading and in subsec. (a) in accordance with 2013, No. 50 , § E.324.3.

Amendments--2019. Subsec. (b): Inserted "such funds as may be deposited or transferred into the Fund by the Vermont Low Income Trust for Electricity," following "Low Income Energy Assistance Program,".

Amendments--2013 Deleted "trust" from section heading preceding "Fund" and in subsec. (a) preceding "Fund to be expended".

§ 2501a. Redesignated. 2013, No. 131 (Adj. Sess.), § 54.

History

Former § 2501a. Former § 2501a, relating to the Office of Home Energy Assistance, was derived from 1993, No. 182 (Adj. Sess.), § 1 and amended by 2007, No. 192 (Adj. Sess.), § 6.019. For present provisions, see § 2602a of this title.

§ 2502. Home Weatherization Assistance Program.

  1. The Director of the State Office of Economic Opportunity shall administer the Home Weatherization Assistance Program under such rules, regulations, funding, and funding requirements as may be imposed by federal law.
  2. In addition, the Director shall supplement or supplant any federal program with the State Home Weatherization Assistance Program.
    1. The State program shall provide an enhanced weatherization assistance amount exceeding the federal per unit limit allowing amounts up to an average of $8,500.00 per unit allocated on a cost-effective basis. The allowable average per unit may be adjusted to account for the lower cost per unit of multifamily buildings. In units where costs exceed the allowable average by more than 25 percent, prior approval of the Director of the State Economic Opportunity Office shall be required before work commences. This amount shall be adjusted annually by increasing the last year's amount by the percentage increase in the Consumer Price Index for the previous year.
    2. The State program shall provide amounts for low-income customers utilizing any high operating cost fuel, to convert to another fuel source under rules adopted by the Director based on the cost effectiveness of the converted facility over the life cycle of the equipment.
    3. The Director, in collaboration with the weatherization service providers and other stakeholders, shall develop the State program so that it will include:
      1. Facilitating the development and implementation of a statewide common energy-audit tool or tools that work well on all Vermont housing, including multifamily buildings.
      2. With regard to multifamily buildings, requiring either of the following requirements to be met:
        1. At least 25 percent or more of the tenants in the building are eligible for the Program.
        2. At least 50 percent of the units are weatherization affordable, and at least one tenant of the building has applied for the Program and has been determined to be eligible. For purposes of this subdivision, "weatherization affordable" means a unit having a rent that is established at less than 30 percent of the income level established by computing 80 percent of the area median income level or 80 percent of the State median income level, whichever is higher, for the relevant household size. Relevant household size means the number of bedrooms in the unit plus one.
      3. Establishing Program eligibility levels at 80 percent of the area median income or 80 percent of the State median income, whichever is higher. Subject to the priority under section 2608 of this title given to participants in the Home Heating Fuel Assistance Program, the State program shall, when weighing factors to assign priority to buildings or units eligible for weatherization assistance, assign the greatest weight to those buildings and units that require the highest energy usage.
      4. Eliminating the lien requirements on weatherized rental properties, so long as the landlord executes a rent stabilization agreement that has a term of at least one year.
      5. Generally, allowing flexibility to accommodate special circumstances in which greater energy savings can be realized or health and safety problems may be alleviated.
      6. Increasing the number of low income homes weatherized each year, or the scope of services provided, or both, to reflect increased revenues in the Home Weatherization Assistance Fund.
      7. With respect to multifamily buildings housing recipients of home heating fuel assistance under chapter 26 of this title, targeted outreach efforts to ensure the highest weatherization participation rates by owners of such buildings.
    4. Funding for the installation of solar domestic hot water systems and other renewable energy systems on eligible homes, where cost-effective and consistent with other program needs.
  3. The Secretary of Human Services shall by rule establish rent stabilization agreements and provisions to recapture amounts expended for weatherization of a rental unit that exceed the amount of energy cost reductions projected to be obtained by eligible tenants of the unit. The time periods established for rent stabilization and recapture shall be set taking into account the size of benefits received by tenants and landlords as well as the effect on program participation. Funds recaptured under this section shall be deposited into the Home Weatherization Assistance Fund established under section 2501 of this title.
  4. Subject to budgetary approval by the General Assembly or approval by the Emergency Board, amounts in the Home Weatherization Assistance Fund created by section 2501 of this title may be transferred to the Home Heating Fuel Assistance program and used for energy assistance to low income persons, provided that such transfer does not reduce the fiscal capacity of the State Office of Economic Opportunity to meet the budgetary obligations of the Weatherization Program as set forth in this chapter and that in the event of approval by the Emergency Board, the Emergency Board so certifies.
  5. [Repealed.]

    Added 1989, No. 272 (Adj. Sess.), § 1; amended 1991, No. 262 (Adj. Sess.), § 3; 2001, No. 63 , § 129c, eff. June 16, 2001; 2007, No. 92 (Adj. Sess.), § 31; 2007, No. 209 (Adj. Sess.), § 15; 2013, No. 50 , §§ E.324.1, E324.2, E.326.1; 2013, No. 89 , § 16; 2017, No. 85 , §§ F.4, F.6, F.7, eff. June 28, 2017; 2019, No. 72 , § E.326.2.

History

Codification. This section was originally enacted as 33 V.S.A. § 3902 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

2013. Deleted "Trust” from "Home Weatherization Assistance Trust Fund” in subdiv. (b)(3)(4) and subsec. (d), and from "Home Heating Fuel Assistance Trust Fund” in subsec. (d), accordance with 2013, No. 50 , § E.324.3.

2008. Subdiv. (b)(3), as added by 2007, No. 209 (Adj. Sess.), § 15, was redesignated as subdiv. (b)(4) to avoid conflict with subdiv. (b)(3) as added by 2007, No. 92 (Adj. Sess.), § 31.

Amendments--2019. Subdiv. (b)(1): Substituted "$8,500.00" for "$8,000.000", and added the second sentence.

Amendments--2017. Subdiv. (b)(3)(C); Substituted "highest energy usage" for "most Btus to heat a square foot of space" following "require the" in the second sentence.

Subsec. (c): Deleted "Trust" following "Assistance" in the third sentence.

Subsec. (d): Substituted "program" for "Fund created by section 2603 of this title" preceding "and used".

Amendments--2013. Section amended generally.

Amendments--2007 (Adj. Sess.). Subsec. (b): Act No. 92 deleted "providing" following "program" in the introductory paragraph.

Subdiv. (b)(1): Act No. 92 inserted "The state program shall provide" preceding "an enhanced"; substituted "$6,000.00" for "$3,000.00" preceding "per unit", "allocated" for "pursuant to rules adopted by the director allocating additional per unit amounts" following "per unit"; deleted the subdiv. (A) designation and "the lesser of" following "by", "or" following "year" and subdiv. (B).

Subdiv. (b)(2): Act No. 92 inserted "The state program shall provide" preceding "amounts".

Subdiv. (b)(3): Added by Act No. 92.

Subdiv. (b)(4): Added by Act No. 209.

Amendments--2001. Subsec. (e): Added.

Amendments--1991 (Adj. Sess.). Subsec. (b): Rewrote subdiv. (1), made a minor change in punctuation in subdiv. (2), and deleted subdiv. (3).

Subsec. (d): Added.

§ 2503. Fuel tax.

    1. There is imposed a tax on the retail sale of heating oil, propane, kerosene, and other dyed diesel fuel delivered in Vermont, at the rate of $0.02 per gallon. (a) (1)  There is imposed a tax on the retail sale of heating oil, propane, kerosene, and other dyed diesel fuel delivered in Vermont, at the rate of $0.02 per gallon.
    2. There is imposed a gross receipts tax of 0.75 percent on the retail sale of natural gas and coal.
    3. There is imposed a gross receipts tax of 0.5 percent on the retail sale of electricity.
  1. The tax shall be levied upon and collected monthly from the seller. Fuel sellers may itemize the tax on the invoice or bill, and if the seller does itemize the amount, the invoice or bill shall include a statement that the tax is "for support of Vermont's Low Income Home Weatherization Program."
  2. The tax shall be administered by the Commissioner of Taxes, and all receipts shall be deposited by the Commissioner in the Home Weatherization Assistance Fund. All provisions of law relating to the collection, administration, and enforcement of the sales and use tax imposed by 32 V.S.A. chapter 233 shall apply to the tax imposed by this chapter.
  3. No tax under this section shall be imposed for any month ending after June 30, 2024.

    Added 1989, No. 272 (Adj. Sess.), § 1; amended 1991 No. 262 (Adj. Sess.), §§ 5-7; 1993, No. 230 (Adj. Sess.), §§ 1, 2; 2003, No. 9 , § 2; 2007, No. 65 , § 132; 2007, No. 92 (Adj. Sess.), § 32; 2009, No. 22 , § 9a; 2009, No. 3 (Sp. Sess.), § 18, eff. June 10, 2009; 2009, No. 160 (Adj. Sess.), § 44; 2011, No. 45 , §§ 32, 32a, eff. May 24, 2011; 2013, No. 50 , § E.324.3; 2013, No. 73 , § 56, eff. June 5, 2013; 2013, No. 131 (Adj. Sess.), § 55, eff. May 20, 2014; 2013, No. 174 (Adj. Sess.), § 48; 2015, No. 134 (Adj. Sess.), § 35; 2015, No. 134 (Adj. Sess.), § 39, eff. Jan. 1, 2017; 2019, No. 71 , § 18.

History

Codification. This section was originally enacted as 33 V.S.A. § 3903 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

2016. In subsec. (c), deleted "Trust" preceding "Fund" in accordance with 2013, No. 50 , § E.324.3.

- 2014. In subsec. (f), in the sixth sentence, the word "Trust" was deleted before "Fund" to conform with changes made pursuant to 2013 Acts and Resolves, No. 50, § E.324.3.

- 2009. This section was amended by Act No. 22 and Act No. 3 (Sp. Sess.). The language adopted by Act No. 3 (Sp. Sess.) is the latter of the two and is controlling.

- 2008. In subsec. (c), substituted "subsection 201(a) of Title 30" for "30 V.S.A. § 201(a)" to conform reference to V.S.A. style.

Amendments--2019. Subdiv. (a)(1): Substituted "in Vermont" for "to a residence or business".

Subsec. (d): Substituted "2024" for "2019".

Amendments--2015 (Adj. Sess.). Subsecs. (a) and (b): Amended generally.

Subsecs. (d) through (f): Deleted.

Subsec. (g): Redesignated as present subsec. (d).

Amendments--2013 (Adj. Sess.). Act No. 131 amended section generally.

Subdiv. (a)(1): Act No. 174 inserted "propane," following "heating oil".

Subdiv. (a)(2): Act. No. 174 deleted, redesignated former subdivs. (a)(3)-(a)(5) as present (a)(2)-(a)(4).

Amendments--2013 Subsec. (a): Act No. 73 deleted "by sellers receiving more than $10,000.00 annually for the sale of such fuels" after "types of fuel".

Amendments--2011. Subsec. (e): Substituted "30 V.S.A. § " for "subsection" preceding "201(a)"; deleted "of Title 30" following "201(a)" and in the third sentence substituted "that meet the eligibility criteria for low income weatherization services as determined by the office of economic opportunity" for "at or below 150 percent of the federally established poverty guidelines" following "households".

Subsec. (h): Substituted "2016" for "2011" following "June 30," and "2017" for "2012" following "March 1,".

Amendments--2009 (Adj. Sess.) Subdiv. (a)(1): Substituted "delivered to a residence or business" for "not used to propel a motor vehicle".

Amendments--2009. Subdiv. (a)(1): Substituted "dyed diesel fuel used for heating" for "heating oil and kerosene not used to propel a motor vehicle".

Amendments--2009 (Sp. Sess.). Subdiv. (a)(1): Substituted "heating oil, kerosene, and other dyed diesel fuel not used to propel a motor vehicle" for "dyed diesel fuel used for heating".

Amendments--2007 (Adj. Sess.). Subsec. (h): Substituted "2011" for "2008" and "2012" for "2009".

Amendments--2007. Subsec. (g): Substituted "two and one-half" for "12 and one-half" preceding "percent" in the first sentence.

Amendments--2003. Subsec. (h): Added.

Amendments--1993 (Adj. Sess.). Inserted "except in cases where the fuel seller and weatherization staff jointly conclude that the need for weatherization services can be determined without a comprehensive energy audit" following "plan" in the fourth sentences of subsecs. (e) and (f).

Amendments--1991 (Adj. Sess.). Added the second sentence of subsec. (b), repealed subsec. (d), and added subsecs. (e)-(g).

Termination of section. 1989, No. 272 (Adj. Sess.), § 3, as amended by 1991, No. 262 (Adj. Sess.), § 1, provided for the termination of this section on July 1, 1994, unless further extended by act of the general assembly. Pursuant to 1995, No. 158 (Adj. Sess.), § 5, the section was to terminate on June 30, 1998, but 1997, No. 156 (Adj. Sess.), § 32, provided in part that this section shall continue in effect until July 1, 2003.

Repeal of expiration date. Pursuant to 1997, No. 156 (Adj. Sess.), § 32, this section was to expire on July 1, 2003. However, pursuant to 2003, No. 9 , § 1, the sunset of this section was repealed.

Fuel tax; rate setting. 2015, No. 134 (Adj. Sess.), § 36 provides "A company subject to 30 V.S.A. § 218 shall be entitled to a recovery of an increase in the fuel tax in 33 V.S.A. § 2503(a)(2), in Sec. 35 of this act, from the effective date of that increase. The manner of recovery shall be approved by the Vermont Public Service Board pursuant to its authority in 30 V.S.A. § 218."

CHAPTER 26. HOME HEATING FUEL ASSISTANCE

Sec.

History

Implementation of payment system. 2011, No. 75 (Adj. Sess.), § 88, eff. March 7, 2012, provides: "No later than November 1, 2012, the secretary of human services or designee shall implement a payment system to pay fuel benefits to certified fuel suppliers after the fuel is delivered or, for metered fuel and regulated utilities, after the beneficiary's account has been billed."

Fuel purchasing; home heating fuel assistance. 2013, No. 89 , § 21 provides: "(a) Under 33 V.S.A. chapter 26 (home heating fuel assistance), a system of fuel purchasing shall be developed that ensures that the recipients of such assistance are offered the lowest possible fuel prices.

"(b) On or before August 1, 2013, the Secretary of Human Services (the Secretary) shall adopt a revised system of fuel purchasing under 33 V.S.A. chapter 26 that meets the standard set forth in subsection (a) of this section."

§ 2601. Policy and purpose.

  1. It is the purpose of this chapter to secure the safety and health of low income Vermont households by providing needy Vermonters with assistance for the purchase of essential home heating fuel. To further this purpose, application acceptance, processing, and eligibility determination should as much as is practical be coordinated with other economic benefit programs administered by the Agency of Human Services.
  2. This chapter establishes a Home Heating Fuel Assistance Program in the Agency of Human Services with both a seasonal fuel assistance component and a crisis component.

    Added 1995, No. 158 (Adj. Sess.), § 1, eff. May 10, 1996; amended 2009, No. 88 (Adj. Sess.), § 1, eff. April 29, 2010.

History

Amendments--2009 (Adj. Sess.) Subsec. (a): Added the second sentence.

Subsec. (b): Deleted "for very low income households" following "assistance component" and "to supply fuel assistance to low income households in crisis situations" following "crisis component".

§ 2601a. Definitions.

As used in this chapter:

  1. "Household" means any individual or group of individuals who live together as one economic unit:
    1. for whom energy for home heating fuel is customarily purchased in common; or
    2. who make undesignated payments for energy for home heat in the form of rent.
  2. The following individuals are members of the same household based on their being legally responsible for the financial support of the applicant or recipient or another member of the household:
    1. an individual residing in the dwelling unit who is the husband, wife, or civil union partner, or minor daughter or son of the applicant or recipient;
    2. an individual residing in the dwelling unit who is the parent of any minor daughter or son included in the household; any minor daughter or son of such parent not already included in the household; the husband, wife, or civil union partner of any minor included in the household; or the minor daughter or son of any minor included in the household.
  3. The following individuals shall be presumed to be members of the same household, unless the applicant or recipient provides to the Office of Home Heating Fuel Assistance reasonable evidence that such individuals are not members of the same household economic unit:
    1. An individual residing in the dwelling unit who is related by blood, civil marriage, or adoption to another resident of the dwelling unit and has not been included in the household in accordance with the provisions of subdivision (2) of this section. Such relationships include the relationship of the adult applicant or adult recipient to his or her father, mother, grandmother, grandfather, adult son, adult daughter, grandson, granddaughter, brother, sister, stepfather, stepmother, stepbrother, or stepsister.
    2. An unrelated individual residing in the dwelling unit who does not pay reasonable compensation to rent one or more rooms as separate living quarters, or who does not make reasonable compensation in the form of caretaker or companionship services in the case of an applicant or recipient who is 60 years of age or older or disabled.
  4. The following individuals shall be presumed not to be members of the same household, provided that the applicant or recipient provides to the Office of Home Heating Fuel Assistance reasonable evidence that such individuals meet the following standards for exclusion from the economic unit:
    1. individuals in the custody of and placed in foster care by the Department for Children and Families and individuals placed in a home by or through a program administered by the Department of Health or of Disabilities, Aging, and Independent Living;
    2. individuals providing medically necessary personal care or homemaker services to a member of the household who is 60 years of age or older or disabled.

      Added 1999, No. 59 , § 1, eff. June 1, 1999; amended 2005, No. 174 (Adj. Sess.), § 108; 2007, No. 172 (Adj. Sess.), § 12; 2021, No. 20 , § 315.

History

2013. In the introductory paragraph, substituted "As used in" for "For purposes of" preceding "this chapter" to conform to V.S.A. style.

- 2009. In subdiv. (3)(A), substituted "civil marriage" for "marriage" in accordance with 2009, No. 3 , § 12a.

Amendments--2021 Subdiv. (4): Inserted "following" preceding "standards" and deleted "specified below" following "standards".

Amendments--2007 (Adj. Sess.). Subdivs. (2)(A), (B): Substituted ", wife, or civil union partner" for "or wife" following "husband".

Amendments--2005 (Adj. Sess.). Subdiv. (4)(A): Substituted "for children and families" for "of social and rehabilitative services" following "department"; deleted "developmental and mental" preceding "health" and substituted "or of disabilities, aging, and independent living" for "services" following "health".

§ 2602. Administration.

  1. The Agency of Human Services shall administer the Home Heating Fuel Assistance Program through an Office of Home Heating Fuel Assistance to be assigned within the Agency as determined by the Secretary and to be headed by a Director appointed by the Secretary.
  2. The Secretary of Human Services shall adopt rules, pursuant to 3 V.S.A. chapter 25, necessary for the implementation of this chapter, or pursuant to any applicable federal laws or regulations.
  3. The Secretary shall engage in cost-effective purchasing practices to maximize the purchasing power of public funds used in connection with the Home Heating Fuel Assistance Program. Such practices shall include preseason purchases of fuel, fixed price agreements, automatic fuel delivery, and negotiations with fuel suppliers on behalf of Program beneficiaries for additional fuel price discounts. The practices authorized by this subsection shall be used in connection with all applicable fuels purchased by Program beneficiaries. The Secretary shall make available to Program recipients the list of fuel suppliers who have agreed to provide fuel discounts.
  4. [Repealed.]

    Added 1995, No. 158 (Adj. Sess.), § 1, eff. May 10, 1996; amended 2001, No. 63 , § 129a, eff. June 16, 2001; 2005, No. 93 (Adj. Sess.), § 38, eff. March 3, 2006; 2007, No. 172 (Adj. Sess.), § 13; 2013, No. 50 , § E.324.4, eff. July 2, 2013; 2013, No. 89 , § 17; 2017, No. 3 , § 65, eff. March 2, 2017.

History

Editor's note. The text of this section is based on the harmonization of two amendments. During the 2013 session, this section was amended twice, by Act Nos. 50 and 89, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2013 session, the text of Act Nos. 50 and 89 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

2013. - In subsec. (c), deleted ", but not be limited to" following "include" in the second sentence in accordance with 2013, No. 5 , § 4.

Amendments--2017. Subsec. (d): Repealed.

Amendments--2013. Subsec. (d): Added by Act No. 50 and Act No. 89.

Amendments--2007 (Adj. Sess.). Subsec. (b): Deleted the former second sentence.

Amendments--2005 (Adj. Sess.). Subsec. (c): Inserted "fixed price agreements, automatic fuel delivery" following "purchases of fuel" and substituted "beneficiaries" for "recipients" in the second sentence.

Amendments--2001. Subsec. (c): Added.

§ 2602a. Office of Home Energy Assistance.

  1. There is created an Office of Home Energy Assistance to be assigned to a department within the Agency of Human Services as designated by the Secretary and to be headed by a Director appointed by the Secretary.
  2. The responsibilities of the Office of Home Energy Assistance shall include:
    1. administering the Low Income Home Energy Assistance Program (LIHEAP), 42 U.S.C. § 8621 et seq., and coordinating it with other related heating and weatherization programs;
    2. developing and recommending policy changes for the Secretary;
    3. coordinating home energy advocacy training and statewide outreach;
    4. monitoring related federal developments and projects in other states;
    5. exploring alternative and additional funding possibilities to LIHEAP, both private and public;
    6. preparing a written annual report addressing the functions set forth in this chapter as well as energy needs; caseload and funding projections; recommendations, if any, for appropriate pilot projects; and, in coordination with the Home Energy Assistance Task Force, recommendations to the General Assembly; and
    7. coordinating with the Vermont Housing Finance Agency and the Vermont Economic Development Authority in establishing income, efficiency, and administrative guidelines for the Energy Efficiency Loan Program.
  3. A Home Energy Assistance Task Force shall advise the Office of Home Energy Assistance. The Task Force shall be composed of the Commissioner of the designated department or the Commissioner's designee, one member of the low-income community selected by the Vermont Low Income Advocacy Council, Inc., one representative of elders selected by the Community of Vermont Elders, one representative of people with disabilities selected by the Vermont Coalition for Disability Rights, one representative of unregulated fuel providers selected by unregulated fuel providers, one representative of electric utilities selected by the electric utilities, one representative of gas utilities selected by the gas utilities, one representative of the State Office of Economic Opportunity, and one representative of the Department of Public Service. If any constituency group cannot agree on its representative, the Secretary shall make those selections. Members of the Task Force shall be entitled to reimbursement for reasonable travel and meal expenses. The Task Force shall report regularly to the Director and on request to the General Assembly for the purpose of making recommendations for improving Vermont's Home Energy Assistance Programs.

    Added 1993, No. 182 (Adj. Sess.), § 1; amended 2007, No. 192 (Adj. Sess.), § 6.019, eff. June 7, 2008; 2013, No. 96 (Adj. Sess.), § 212; 2013, No. 131 (Adj. Sess.), § 54, eff. May 20, 2014; 2021, No. 20 , § 316.

History

Revision note. Substituted "42 U.S.C. § 8621 et seq." for "42 U.S.C. § 8621 et al" to correct an error in the reference.

Amendments--2021. Subdiv. (b)(6): Deleted "above" preceding "functions" and inserted "set forth in this chapter" following "functions".

Amendments--2013 (Adj. Sess.). Subsec. (c): Act 96 substituted "low-income" for "low income" following "member of the", "Vermont Low Income Advocacy Council, Inc." for "low income advocacy council" following "selected by the", "Community of Vermont Elders" for "coalition of Vermont elders" preceding ", one representative of people", and "Department of Public Service" for "public service department" following "representative of the".

Amendments--2007 (Adj. Sess.). Subdiv. (b)(7): Added.

Prior law. 33 V.S.A. § 2501a.

Cross References

Cross references. Home energy rating organization accreditation, see 30 V.S.A. § 52.

§ 2602b. LIHEAP and weatherization.

Notwithstanding section 2501 of this title, the Secretary of Human Services may transfer up to 15 percent of each federal fiscal year's Low Income Home Energy Assistance Program (LIHEAP) block grant to the Home Weatherization Assistance Program to be used for weatherization projects and program administration allowable under LIHEAP in the same State fiscal year. At the same time, an equivalent transfer shall be made to the Low Income Home Energy Assistance Program from the Home Weatherization Assistance Fund to provide home heating fuel benefits and program administration in the same State fiscal year.

Added 2018, No. 11 (Sp. Sess.), § E.324.1.

§ 2603. Repealed. 2017, No. 3, § 65(a), eff. March 2, 2017.

History

Former § 2603. Former § 2603, relating to the Home Heating Fuel Assistance Fund, was derived from 1995, No. 158 (Adj. Sess.), § 1 and amended by 2001, No. 63 , § 129b; 2009, No. 4 , § 109; and 2009, No. 88 (Adj. Sess.), § 2.

§ 2604. Eligible beneficiaries; requirements.

  1. The Secretary of Human Services or designee, by rule, shall establish household income eligibility requirements of beneficiaries in the Seasonal Fuel Assistance Program, including the income of all residents of the household. The income eligibility requirements shall require that households have a gross household income no greater than 185 percent of the federal poverty level nor in excess of income maximums established by LIHEAP in order to be potentially eligible for benefits. To the extent allowed by federal law, the Secretary of Human Services or designee shall establish by rule a calculation of gross income based on the same rules used in 3SquaresVT, except that the Secretary or designee shall include additional deductions or exclusions from income required by LIHEAP.
  2. The Secretary of Human Services or designee shall by procedure establish a table that contains amounts that will function as a proxy for applicant households' annual heating fuel cost for the previous year. The seasonal fuel expenditure estimates contained within the table shall closely approximate the actual home heating costs experienced by participants in the Home Heating Fuel Assistance Program. The table shall be revised not less frequently than every three years based on data supplied by certified fuel suppliers, the Department of Public Service, and other industry sources to the Office of Home Heating Fuel Assistance. The Secretary or designee shall provide a draft of the table to the Home Energy Assistance Task Force established pursuant to subsection 2602a(c) of this title and solicit input from the Task Force prior to finalizing the table.
  3. In determining heating fuel costs of households:
    1. Residents of housing units subsidized by the federal, State, or local government shall be deemed to have incurred no annual home heating fuel costs, except to the extent required by any federal law or regulation if federal funds are utilized for the Home Heating Fuel Assistance Program, and with the following additional exception. Housing unit residents who participate in Reach Up under chapter 11 of this title or who receive Supplemental Security Income/Aid to the Aged, Blind, and Disabled (SSI/AABD); Emergency Assistance; or General Assistance benefits that are used in whole or in part to pay for their housing or utility costs and do not receive other federal, State, or local government assistance targeted specifically to their housing or utility needs shall, with the exception of households for which the cost of heat is supplied by the landlord, be assumed to incur annual home heating fuel costs and their eligibility for annual heating fuel assistance shall not be limited by this subsection.
    2. The annual heating fuel cost for a household unit shall be only for the cost of the primary heating fuel source of the unit, which may be for wood, electricity, or any other fuel source, but annual heating fuel costs shall be only for the cost of heat and not include the cost of the fuel for any other uses of the household.

      Added 1995, No. 158 (Adj. Sess.), § 1, eff. May 10, 1996; amended 1997, No. 2 , § 68, eff. Feb. 12, 1997; 1997, No. 61 , § 130a; 1999, No. 59 , §§ 2, 3, eff. June 1, 1999; 1999, No. 66 (Adj. Sess.), § 56, eff. Feb. 8, 2000; 2007, No. 65 , § 143; 2007, No. 172 (Adj. Sess.), § 14; 2009, No. 4 , § 108, eff. July 1, 2008; 2009, No. 1 (Sp. Sess.), § E.324.3; 2009, No. 88 (Adj. Sess.), § 3, eff. April 29, 2010; 2011, No. 75 (Adj. Sess.), § 112, retroactively eff. June 1, 2010; 2013, No. 50 , § E.324.5; 2013, No. 89 , § 18, eff. June 17, 2013; 2013, No. 131 (Adj. Sess.), § 56, eff. May 20, 2014; 2017, No. 85 , § F.1, eff. June 28, 2017; 2019, No. 131 (Adj. Sess.), § 298.

History

Reference in text. The Supplemental Security Income/Aid to the Aged, Blind, or Disabled (SSI/AABD), referred to in subdiv. (c)(1) is codified as 42 U.S.C. § 1381 et seq.

Amendments--2019 (Adj. Sess.). Subsecs. (a), (b): Deleted the subsec. heading.

Amendments--2017. Subsec. (b): Deleted the former fourth sentence.

Amendments--2013 (Adj. Sess.). Subsec. (b): Substituted "the table" for "such table" twice and "subsection 2602a(c)" for "subsection 2501a(c)" following "pursuant to" in the last sentence.

Amendments--2013 Subsec. (b): Act No. 50 and Act No. 89 added the third sentence.

Amendments--2011 (Adj. Sess.) Subsec. (a): Inserted "nor in excess of income maximums established by LIHEAP".

Amendments--2009 (Adj. Sess.) Section amended generally.

Amendments--2009. Subdiv. (a)(1): Substituted "$250.00" for "$150.00".

Subdiv. (a)(2): Inserted "or $10,000.00 if one member of the household is 60 years of age or older" following "$5,000.00" at the end of the first sentence.

Amendments--2009 (Sp. Sess.). Subdiv. (c)(2): Substituted "who participate in Reach Up under chapter 11 of this title, or who receive" for "that receive Temporary Assistance to Needy Families (TANF)" preceding "Supplemental"; and deleted "TANF" preceding "emergency".

Amendments--2007 (Adj. Sess.). Subdiv. (c)(2): Substituted "Temporary Assistance to Needy Families (TANF)" for "Aid to Needy Families with Children (ANFC)" preceding "Supplemental" and "(TANF)" for "(ANFC)" preceding "emergency assistance".

Amendments--2007. Subsec. (a): In the introductory paragraph, inserted "eligibility" preceding "requirements", added the subdiv. (1) designation and inserted "income" preceding "eligibility" in the first sentence in subdiv. (a)(1), and added subdiv. (a)(2).

Subdiv. (a)(2): Added.

Amendments--1999 (Adj. Sess.). Subsec. (c): Inserted "and are not participating in a public, subsidized or Section 8 housing program" preceding "shall be eligible" in subdiv (1)(A); added a new subdiv. (1)(B) and redesignated former subdiv. (1)(B) as subdiv. (1)(C).

Amendments--1999. Subsec. (a): Substituted "$150.00" for "$100.00" preceding "for each household" in the third sentence.

Subsec. (b): Amended generally.

Subdiv. (c)(1): Amended generally.

Amendments--1997 Subdiv. (c)(1): Amended generally by Act Nos. 2 and 61.

Subdiv. (c)(2): Act No. 2 substituted "households for which the cost of heat is supplied by the landlord" for "heated rental units" following "exception of" in the second sentence.

ANNOTATIONS

1. Construction.

Definition of "household" in Vermont Home Heating Fuel Assistance regulations was inconsistent with definition found in federal Low-Income Home Energy Assistance Act; plain meaning of federal act's phrase "living together as one economic unit" implied that the individuals must depend on one another for financial support, and Congress did not intend homeowners with low income to be excluded from the fuel program merely because they had lodgers living in their homes. Dutton v. Department of Social Welfare, 168 Vt. 281, 721 A.2d 109 (1998).

Inconsistency between Vermont and federal definitions of "household," for purposes of determining eligibility for fuel assistance, resulted in denial or reduction of assistance to certain households in violation of federal act, where Vermont regulations automatically included income and assets of all persons - including a boarder - living at the same residence and sharing a primary heating unit, regardless of the relationship between them or their cost-sharing arrangements. Dutton v. Department of Social Welfare, 168 Vt. 281, 721 A.2d 109 (1998).

§ 2605. Benefit amounts.

  1. The Secretary of Human Services or designee shall by rule establish a table that specifies maximum percentages of applicant households' annual heating fuel costs, based on the proxy table established pursuant to subsection 2604(b) of this title that can be authorized for payment as annual home heating fuel assistance benefits for the following year. The maximum percentages contained within this table shall vary by household size and annual household income. In no instance shall the percentage exceed 90 percent.
  2. The maximum percentages of annual heating fuel costs table established in subsection (a) of this section shall provide proportionally higher benefit percentages to households with a gross income of 154 percent of the federal poverty guidelines or less and proportionally lower benefit percentages to households with a gross income of 155 to 185 percent of the federal poverty guideline.
  3. Annually, based on the number of eligible households that have applied or are projected to apply, and on the eligibility of households in the benefit categories established in this section, the Secretary of Human Services or designee shall, by procedure, set the payment rate that shall be used to determine the amount of annual Home Heating Fuel Assistance for each eligible household. In no event shall the payment rate be greater than 100 percent of the maximum percentage established by rule as required by subsection (a) of this section.
  4. In the case of a household for which the cost of heat is not supplied by the landlord, the household's annual Home Heating Fuel Assistance benefit is the household's annual heating fuel cost as defined in subsection 2604(b) of this title, multiplied by the maximum percentage for that household found in the table established by subsection (a) of this section, multiplied by the payment rate established in subsection (c) of this section.
  5. Households that make undesignated payments for energy for home heat in the form of rent and that are not participating in a public, subsidized, or Section 8 housing program shall be eligible for an annual Home Heating Fuel Assistance benefit in an amount equal to 30 percent of the benefit the household would have received if the household were purchasing energy for home heating fuel directly or in the amount of $50.00, whichever amount is greater.
  6. Households that make undesignated payments for energy for home heat in the form of rent and are participating in a public, subsidized, or Section 8 housing program shall be eligible for a nominal annual Home Heating Fuel Assistance benefit of $21.00.
  7. Residents of the dwelling unit who make reasonable compensation in the form of room rent and who are not members of the same household shall be eligible for an annual Home Heating Fuel Assistance benefit in the amount of $21.00.
  8. Households receiving benefits from 3SquaresVT whose head of household is not otherwise eligible for a fuel benefit under this section shall be eligible for a nominal annual Home Heating Fuel Assistance benefit of $21.00.

    Added 1995, No. 158 (Adj. Sess.), § 1, eff. May 10, 1996; amended 1997, No. 2 , § 69, eff. Feb. 12, 1997; 1999, No. 59 , § 4, eff. June 1, 1999; 2007, No. 172 (Adj. Sess.), § 22; 2009, No. 1 (Sp. Sess.), § E.324.4; 2009, No. 88 (Adj. Sess.), § 4, eff. April 29, 2010; 2013, No. 50 , § E.324.6; 2013, No. 89 , § 19, eff. June 17, 2013; 2013, No. 179 (Adj. Sess.), § E.324.1; 2017, No. 85 , § F.2, eff. June 28, 2017.

History

2008. In subsec. (d), substituted "subdivision 2604(c)(1)" for "section 2604(c)(1)" to conform reference to V.S.A. style.

Amendments--2017. Subsec. (a): Deleted "and, when available, the data collected pursuant to subsection 2602(d) of this title," following "subsection 2604(b) of this title," in the first sentence.

Amendments--2013 (Adj. Sess.). Subsec. (f): Substituted "$21.00" for "$5.00" at the end.

Subsec. (g): Substituted "$21.00" for "$50.00" at the end.

Subsec. (h): Substituted "$21.00" for "$3.00" at the end.

Amendments--2013 Subsec. (a): Act No. 50 and Act No. 89 added "and, when available, the data collected pursuant to subsection 2602(d) of this title" in the first sentence.

Amendments--2009 (Adj. Sess.) Section amended generally.

Amendments--2009 (Sp. Sess.). Subsec. (c): Substituted "subsection" for "section" preceding "2604(b)" and deleted "trust" preceding "fund".

Amendments--2007 (Adj. Sess.). Subsec. (e): Repealed.

Amendments--1999. Section amended generally.

Amendments--1997 Subsec. (a): Inserted "for households for which the cost of heat is not supplied by the landlord" following "that specifies" in the first sentence and added the third sentence.

Subsec. (b): Inserted "for households for which the cost of heat is not supplied by the landlord" following "that specifies" in the first sentence.

Subsec. (c): Rewrote the first sentence.

Subsec. (d): Substituted "In the case of a household for which the cost of heat is not supplied by the landlord, the" for "A" preceding "household's annual" in the first sentence, "these households" for "any household" in the second sentence and added the third sentence.

§ 2606. Application period; assistance.

  1. The Secretary of Human Services or designee may accept applications on an ongoing basis beginning on April 1, 2010. The Secretary or designee may establish by rule the procedure for accepting applications and determining eligibility under this subsection.
  2. No qualified applicant shall be penalized through a reduction of benefits for a late-filed application, except that such applicant shall not receive benefits for any period prior to the month of application.
  3. The Secretary of Human Services or designee shall process applications and related tasks, including assisting households in applying and providing required information and locating and contacting fuel suppliers certified under section 2607 of this title.

    Added 1995, No. 158 (Adj. Sess.), § 1, eff. May 10, 1996; amended 1999, No. 59 , § 5, eff. June 1, 1999; 2009, No. 1 (Sp. Sess.), § E.324.2; 2009, No. 88 (Adj. Sess.), § 5, eff. April 29, 2010.

History

Amendments--2009 (Adj. Sess.) Subsec. (a): Amended generally.

Subsec. (b): Deleted the former first sentence and substituted "receive" for "be entitled to" following "applicant shall not".

Subsec. (c): Substituted "The secretary of human services or designee shall process applications" for "The director of home energy assistance shall supply or contract for staff to carry out application-processing".

Subsec. (d): Deleted.

Amendments--2009 (Sp. Sess.). Subsec. (d): Added by Act No. 1 (Sp. Sess.).

Amendments--1999. Section amended generally.

§ 2607. Payments to fuel suppliers.

  1. The Secretary of Human Services or designee shall certify fuel suppliers, excluding firewood and wood pellet suppliers, to be eligible to participate in the Home Heating Fuel Assistance Program. Beneficiaries may use their seasonal fuel assistance benefit to obtain home heating fuel or energy only from a fuel supplier certified by the Director, except that beneficiaries who heat with firewood or wood pellets may obtain their firewood or wood pellets from any supplier they choose.
  2. Certified fuel suppliers shall agree to conduct reasonable efforts in order to inform and assist beneficiaries in their service areas, maintain records of amounts and costs of all fuel deliveries, send periodic statements to customers receiving home heating fuel assistance informing them of their account's credit or debit balance as of the last statement, deliveries or usage since that statement and the charges for such, payments made or applied, indicating their source, since that statement, and the ending credit or debit balance. Certified fuel suppliers shall also agree to provide the Secretary of Human Services or designee such information deemed necessary for the efficient administration of the Program.
  3. Certified fuel suppliers shall not disclose the beneficiary status of recipients of Home Heating Fuel Assistance benefits, the names of recipients, or other information pertaining to recipients to anyone, except for purposes directly connected with administration of the Home Heating Fuel Assistance Program or when required by law.
  4. Certified fuel suppliers shall also agree to enter into budget agreements with beneficiaries for annualized monthly payments for fuel supplies, provided the beneficiary meets accepted industry credit standards, and shall grant Program beneficiaries such cash discounts, preseason delivery savings, automatic fuel delivery agreements, and any other discounts granted to any other heating fuel customer or as the Secretary of Human Services or designee may negotiate with certified fuel suppliers.
  5. The Secretary of Human Services or designee shall provide each certified fuel supplier with a list of the households who are its customers and have been found eligible for annual Home Heating Fuel Assistance for the current year, the total amount of annual Home Heating Fuel Assistance that has been authorized for each household, and how the total amount has been allocated over the heating season. Each authorized amount shall function as a line of credit for each eligible household. The Secretary or designee shall disburse authorized Home Heating Fuel Assistance benefits to certified fuel suppliers on behalf of eligible households. Authorized benefits for oil, propane, kerosene, dyed diesel, and coal shall be paid after fuel is delivered and invoiced to the Secretary or designee. Authorized benefits for electricity and natural gas shall be paid in full and credited to the eligible household's account at the same time benefit notices are issued to the eligible household.
  6. The Secretary of Human Services or designee shall negotiate with one or more certified fuel suppliers to obtain the most advantageous pricing, payment terms, and delivery methods possible for eligible households.
    1. The Public Utility Commission shall require natural gas suppliers subject to regulation under 30 V.S.A. § 203 to provide a discount program to customers with incomes no greater than 200 percent of the federal poverty level or who meet the Department for Children and Families' means test of eligibility for LIHEAP crisis fuel assistance. Eligibility for the discount shall be verified by the Department for Children and Families. (g) (1)  The Public Utility Commission shall require natural gas suppliers subject to regulation under 30 V.S.A. § 203 to provide a discount program to customers with incomes no greater than 200 percent of the federal poverty level or who meet the Department for Children and Families' means test of eligibility for LIHEAP crisis fuel assistance. Eligibility for the discount shall be verified by the Department for Children and Families.
    2. In implementing the discount program, the Commission shall consider:
      1. low-income discount programs, rates, and cost structures of other Vermont regulated utilities;
      2. low-income discount programs, rates, and cost structures for gas customers in other states; and
      3. options for allocating the costs of the discount program that avoid or reduce the cost impact of the program on ineligible ratepayers, including consideration of each of the following:
        1. use of any revenues collected from ratepayers that are in excess of the revenue requirement most recently determined by the Commission; and
        2. use of revenues collected from ratepayers to fund system expansions that have not been placed in service.
    3. On or before January 15, 2013, the Commission shall:
      1. implement this subsection by order to each natural gas company subject to its jurisdiction; and
      2. report to the House Committees on Commerce and Economic Development and on Human Services and to the Senate Committees on Health and Welfare and on Economic Development, Housing and General Affairs on its implementation of this subsection, including its consideration of the matters described in subdivision (2) of this subsection and the results of that consideration.

        Added 1995, No. 158 (Adj. Sess.), § 1, eff. May 10, 1996; amended 1999, No. 59 , § 6, eff. June 1, 1999; 2005, No. 93 (Adj. Sess.), §§ 38, 126c, eff. March 3, 2006; 2009, No. 88 (Adj. Sess.), § 6, eff. April 29, 2010; 2011, No. 136 (Adj. Sess.), § 13, eff. May 18, 2012; 2013, No. 131 (Adj. Sess.), § 57, eff. May 20, 2014.

History

2017. In subdiv. (g)(1), substituted "Public Utility Commission" for "Public Service Board" in accordance with 2017, No. 53 , § 12.

In subdivs. (g)(2), (g)(2)(C)(i), and (g)(3), substituted "Commission" for "Board" in accordance with 2017, No. 53 , § 12.

Amendments--2013 (Adj. Sess.). Subsec. (f): Made a stylistic change.

Amendments--2011 (Adj. Sess.) Subsec. (b): Deleted "including information required to pay the beneficiary's benefits to the certified supplier after fuel is delivered or, for metered fuel and regulated utilities, after the beneficiary's account has been billed" from the end.

Subsec. (e): Deleted "after fuel is delivered or, for metered fuel and regulated utilities, after the beneficiary's account has been billed" from the end of the third sentence and added the fourth and fifth sentences.

Subsec. (g): Added.

Amendments--2009 (Adj. Sess.) Section amended generally.

Amendments--2005 (Adj. Sess.). Subsec. (e): Inserted "automatic fuel delivery agreements" following "preseason delivery savings".

Subsec. (h): Substituted "shall" for "may" following "director".

Amendments--1999. Subsec. (h): Added.

§ 2608. Weatherization program agreements.

The Director of the Home Energy Assistance Program shall inform the Administrator of the Home Weatherization Assistance Program, established under chapter 25 of this title, of all participants in the Home Heating Fuel Assistance Program. The Agency of Human Services shall provide all participants in the Home Heating Fuel Assistance Program with information regarding the efficiency utility established under 30 V.S.A. § 209 . All participants in the Home Heating Fuel Assistance Program shall be deemed to comply with any income requirements of the Home Weatherization Program, but to receive weatherization services, recipients shall be required to meet any other eligibility requirements of the Home Weatherization Program. As a condition of receipt of benefits under the Home Heating Fuel Assistance Program, a recipient shall consent to receive services of the Home Weatherization Assistance Program. The Home Weatherization Assistance Program shall give the highest priority to providing services to participants within the Home Heating Fuel Assistance Program and, among those participants, to those who require the highest energy usage.

Added 1995, No. 158 (Adj. Sess.), § 1, eff. May 10, 1996; amended 2005, No. 208 (Adj. Sess.), § 16; 2013, No. 50 , § E.324.7; 2013, No. 89 , § 20; 2017, No. 85 , § F.3, eff. June 28, 2017.

History

Amendments--2017. Deleted "and of the information required by subsection 2602(d) of this title" following "Fuel Assistance Program" in the first sentence; deleted the former fifth sentence, and substituted "highest energy usage" for "most BTUs to heat a square foot of space" following "who require the" in the present fifth sentence.

Amendments--2013 Act No. 50 and Act No. 89 amended section generally.

Amendments--2005 (Adj. Sess.). Added the second sentence.

§ 2609. Crisis reserves; eligibility and assistance.

  1. Annually, the Secretary of Human Services or designee shall determine an appropriate amount of funds to be set aside for expenditure for the crisis fuel assistance component of the Home Heating Fuel Program. The Secretary or designee shall also adopt rules to define crisis situations for the expenditure of the home heating fuel crisis funds and to establish the income eligibility requirements of households for receipt of crisis Home Heating Fuel Assistance, provided that no household shall be eligible whose gross household income is greater than 200 percent of the federal poverty level based on the income of all persons residing in the household. To the extent allowed by federal law, the Secretary or designee shall establish by rule a calculation of gross income based on the same rules used in 3SquaresVT, except that the Secretary or designee shall include additional deductions or exclusions from income required by LIHEAP.
  2. Crisis fuel grants shall be limited per winter heating season to one grant for households that are income-eligible and have received a seasonal fuel assistance grant and meet all eligibility requirements for crisis fuel assistance or to two grants for households that are not income-eligible for seasonal fuel assistance and meet all eligibility requirements for crisis fuel assistance.

    Added 1995, No. 158 (Adj. Sess.), § 1, eff. May 10, 1996; amended 2009, No. 1 (Sp. Sess.), § E.324.5; 2009, No. 88 (Adj. Sess.), § 7, eff. April 29, 2010; 2011, No. 75 (Adj. Sess.), § 113, retroactively eff. June 1, 2010; 2013, No. 50 , § E.324.9; 2017, No. 85 , § F.5, eff. June 28, 2017.

History

Amendments--2017. Subsec. (a): Deleted "in the Home Heating Fuel Assistance fund" following "amount of funds" in the first sentence, and "and asset" preceding "eligibility requirements" and "or is in excess of income maximums established by LIHEAP" following "federal poverty level" in the second sentence.

Amendments--2013 Added "eligibility and assistance" in the section heading; added subsec. (a) designation; and added subsec. (b).

Amendments--2011 (Adj. Sess.) Inserted "or is in excess of income maximums established by LIHEAP" in the second sentence.

Amendments--2009 (Adj. Sess.) Inserted "of human services or designee" preceding "shall determine" and deleted "by rule" thereafter, and substituted "fuel assistance" for "reserve" preceding "component" in the first sentence; inserted "or designee" following "secretary", substituted "funds" for "reserve" following "fuel crisis", deleted "reserve" preceding "home heating", inserted "gross" preceding "household income" and substituted "200 percent" for "150 percent" in the second sentence, and added the third sentence.

Amendments--2009 (Sp. Sess.). Deleted "trust" preceding "fund".

Expedited crisis fuel assistance. 2021, No. 74 , § E.324 provides: "(a) The Commissioner for Children and Families or designee may authorize crisis fuel assistance to those income-eligible households that have applied for an expedited seasonal fuel benefit but have not yet received it if the benefit cannot be executed in time to prevent them from running out of fuel. The crisis fuel grants authorized pursuant to this section count toward the one crisis fuel grant allowed per household for the winter heating season pursuant to 33 V.S.A. § 2609(b)."

PART 3 Programs and Services for Children and Youth

CHAPTER 31. GOVERNOR'S COMMITTEE ON CHILDREN AND YOUTH

Sec.

§§ 3101-3105. Repealed. 1995, No. 188 (Adj. Sess.), § 4.

History

Former §§ 3101-3105. Former §§ 3101-3105, relating to the Governor's committee on children and youth, were derived from 1967, No. 117 , §§ 1, 2.

CHAPTER 33. PREVENTION OF JUVENILE DELINQUENCY AND OTHER PROBLEM BEHAVIORS

Sec.

Cross References

Cross references. Children at risk of school failure, see chapter 47 of this title.

Reporting abuse of children, see chapter 49, subchapter 2 of this title.

§ 3301. Definitions.

As used in this chapter:

  1. "Council" means the Children and Family Council for Prevention Programs.
  2. "Primary prevention" means efforts to reduce the likelihood of juvenile delinquency, truancy, substance abuse, child abuse, and other socially destructive behaviors before intervention by authorities.

    Added 1983, No. 79 , § 1; amended 1985, No. 177 (Adj. Sess.), § 2.

History

Amendments--1985 (Adj. Sess.). Subdiv. (1): Substituted "children and family council for prevention programs" for "delinquency prevention coordinating council".

Prior law. 33 V.S.A. § 1051.

§ 3302. Children and Family Council for Prevention Programs.

  1. A Children and Family Council for Prevention Programs is established.  The Council shall consist of 21 members who shall be appointed by the Governor with the advice and consent of the Senate for three-year terms.  In the appointment of the members, consideration shall be given to the selection of persons who will adequately represent the interests of the beneficiaries of the primary prevention programs.
  2. The Council shall elect a chairperson, vice chairperson, and clerk from its members who shall serve for one year or until their successors are elected.
  3. A majority of the members of the Council shall constitute a quorum.  The Council shall act only by vote of a majority of its members present and voting at a meeting at which a quorum is in attendance.
  4. In the event a vacancy occurs on the Council, the vacancy shall be filled in the same manner as provided in subsection (a) of this section.  The term of a person appointed to fill a vacancy shall terminate on the date on which the original appointment would have terminated if the vacancy had not occurred.
  5. Council members are authorized to receive per diem compensation from federal funds as specified in 32 V.S.A. § 1010(b) .

    Added 1983, No. 79 , § 1; amended 1985, No. 177 (Adj. Sess.), § 3; 1997, No. 61 , § 271a.

History

Amendments--1997 Subsec. (e): Added.

Amendments--1985 (Adj. Sess.). Rewrote the section heading and subsec. (a).

Prior law. 33 V.S.A. § 1052.

§ 3303. Council; duties.

  1. The Council shall assist State agencies and the departments in the development, improvement, and coordination of primary prevention programs and activities at the State and local levels. In providing this service, the Council shall:
    1. acquire and provide pertinent research data and technical assistance related to the development and practice of primary prevention programs;
    2. develop a State primary prevention plan that coordinates and consolidates the primary prevention planning efforts of the State agencies and departments specified in section 3305 of this title;
    3. evaluate and prepare recommendations on the prevention policies and programs developed and implemented under section 3305 of this title and submit the recommendations on or before January 1 to the Governor, the House Committees on Human Services and on Appropriations, and the Senate Committees on Health and Welfare and on Appropriations.
  2. The Council shall administer the Children's Trust Fund as provided in sections 3306 and 3307 of this title.
  3. Subject to the provisions of 32 V.S.A. § 5 , the Council may apply for and receive federal or private funds, or any combination thereof in order to accomplish the purposes of this chapter.  To the extent that funding under the Juvenile Justice and Delinquency Prevention Act of 1974, as amended, permits, the Council may award grants to State and local organizations for primary prevention activities in accordance with the provisions of that act.
  4. The Council shall be attached for administrative purposes to the Agency of Human Services.

    Added 1983, No. 79 § 1; amended 1985, No. 177 (Adj. Sess.), § 4; 2013, No. 131 (Adj. Sess.), § 58, eff. May 20, 2014; 2021, No. 20 , § 317.

History

Reference in text. The Juvenile Justice and Delinquency Prevention Act of 1974, referred to in subsec. (c), is codified as 34 U.S.C. § 11101 et seq.

Revision note. Substituted "section 3304" for "section 1054" in subdiv. (a)(2), "section 3305" for "section 1055" in subdiv. (a)(3) and "sections 3306 and 3307" for "sections 1056 and 1057" in subsec. (b), in view of the recodification of those sections by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments--2021. Subdiv. (a)(3): Amended generally.

Subsec. (b): Substituted "The Council shall administer" for "Administer".

Amendments--2013 (Adj. Sess.). Subdiv. (a)(2): Substituted "section 3305" for "section 3304" following "in section".

Amendments--1985 (Adj. Sess.). Added a new subsec. (b), redesignated former subsec. (b) as subsec. (c) and rewrote that subsection, and redesignated former subsec. (c) as subsec. (d).

Prior law. 33 V.S.A. § 1053.

§ 3304. State Primary Prevention Plan.

  1. The State Primary Prevention Plan shall provide for the use of State resources in ways that will strengthen the commitment of local communities to altering conditions that contribute to delinquency or other problem behaviors so that the burden of State-funded treatment and crisis-oriented service programs will be reduced.  The Plan shall set forth specific goals, objectives, and key result areas and shall include proposals to integrate and build upon successful methods of primary prevention.
  2. By July 1 of each even-numbered year, the Council shall revise the State Primary Prevention Plan, which shall be submitted to the Governor, the House Committee on Human Services, the House Committee on Appropriations, the Senate Committee on Health and Welfare, and the Senate Committee on Appropriations.

    Added 1983, No. 79 , § 1; amended 1995, No. 190 (Adj. Sess.), § 1(a); 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2013, No. 92 (Adj. Sess.), § 293, eff. Feb. 14, 2014; 2013, No. 131 (Adj. Sess.), § 59, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Subsec. (b): Act No. 92 substituted "Governor and to the House Committees on Health Care and on Human Services, the Senate Committee on Health and Welfare, and the House and Senate Committees on Appropriations" for "governor and to the senate and house committees on health and welfare and appropriations".

Subdiv. (b)(1): Act No. 92 substituted "Agency of Education" for "department of education".

Act No. 131 deleted subsecs. (b) and (c), redesignated former subsec. (d) to be subsec. (b), and amended the new subsec. (b) generally.

Amendments--2005 (Adj. Sess.) Subdiv. (c)(3): Substituted "department of labor" for "department of employment and training".

Amendments--1995 (Adj. Sess.) Subdiv. (c)(2): Substituted "agency of commerce and community development" for "agency of development and community affairs".

Prior law. 33 V.S.A. § 1054.

§ 3305. Implementation and evaluation of Primary Prevention Plan.

Primary prevention policies and implementation practices shall be targeted to specific goals, objectives, and key result areas and shall be consistent with the State Primary Prevention Plan. The following departments and agencies shall formulate the policies and practices:

  1. the Agency of Education;
  2. the Agency of Human Services, including all departments;
  3. the Department of Motor Vehicles;
  4. the Office of the Attorney General;
  5. the Agency of Commerce and Community Development;
  6. the Department of Labor;
  7. the Department of Public Safety; and
  8. the Department of Forests, Parks and Recreation.

    Added 1983, No. 79 , § 1; amended 2013, No. 131 (Adj. Sess.), § 60, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Section amended generally.

Prior law. 33 V.S.A. § 1055.

§ 3306. Children's Trust Fund.

  1. A Children's Trust Fund is established for the purpose of providing funds for community-based primary prevention programs that have been shown to be effective for juveniles. The Fund shall be maintained by the Agency of Human Services.
  2. The Fund shall be composed of revenues from the following sources:
    1. any private donations made by individuals or organizations to the Fund for the purposes of this chapter;
    2. when authorized by the General Assembly, funds appropriated directly or combined with other funds appropriated for services or programs having purposes consistent with primary prevention;
    3. funds received from the federal government as matching funds or other funds for the purposes set forth in this chapter;
    4. funds held, donated to, or acquired by any State agency for purposes generally consistent with the purposes of this chapter and transferred at the direction of the Governor to the Children's Trust Fund.
  3. All interest accrued or generated by revenue in the Fund shall remain in the Fund and be available for the payment of grants awarded from the Fund.
  4. The administrator of the Children's Trust Fund shall annually provide the Commissioner of Taxes the number of copies requested of an annual report of the items of income and expense of the Fund for the most recent fiscal year.

    Added 1985, No. 177 (Adj. Sess.), § 5; amended 1995, No. 164 (Adj. Sess.), § 2; 2021, No. 20 , § 318.

History

Amendments--2021. Subsec. (b): Substituted "composed" for "comprised" in the intro. para.

Subsec. (c): Substituted "from the Fund" for "therefrom."

Amendments--1995 (Adj. Sess.) Subsec. (d): Added.

Prior law. 33 V.S.A. § 1056.

§ 3307. Trust fund programs.

  1. The Council shall plan, implement, and encourage primary prevention programs.
  2. The Secretary of Human Services and the Council shall solicit proposals for grant awards from public and private persons and agencies.  The Council shall evaluate the proposals and submit to the Secretary its priorities for awarding and funding grants.
  3. Proposals shall be evaluated on the basis of the following criteria:
    1. the demonstrated effectiveness of the program upon which the proposal is based;
    2. the need for such services within the community;
    3. other resources available to meet the need for primary prevention services;
    4. the ability of the applicant to obtain funding from another source to cover a portion of the program costs.
  4. To the extent that funds permit, the Secretary shall award grants to applicants of proposals that are recommended by the Council and shall administer such grants.  The Council and Secretary shall monitor expenditures by grantees and evaluate the effectiveness of the programs, assistance, or services financed by the Children's Trust Fund.
  5. The Secretary of Human Services in conjunction with the Council shall develop guidelines for the coordination of programs and the application for and distribution of assistance from the Children's Trust Fund.

    Added 1985, No. 177 (Adj. Sess.), § 6.

History

Prior law. 33 V.S.A. § 1057.

§ 3308. Repealed. 2013, No. 142 (Adj. Sess.), § 100.

History

Former § 3308. Former § 3308, relating to annual reports, was derived from 1985, No. 177 (Adj. Sess.), § 7.

§ 3309. Compliance with the Juvenile Justice and Delinquency Prevention Act.

The Department for Children and Families, within the Agency of Human Services, is the State agency designated for supervising the preparation and administration of the Juvenile Justice and Delinquency Prevention Act State Plan and is also designated as the State agency responsible for monitoring and data collection for purposes of compliance with the Juvenile Justice and Delinquency Prevention Act.

Added 2017, No. 201 (Adj. Sess.), § 4, eff. May 30, 2018.

History

Reference in text. The Juvenile Justice and Delinquency Prevention Act, referred to in this section, is codified as 34 U.S.C. § 11101 et seq.

CHAPTER 34. PROMOTION OF CHILD AND FAMILY RESILIENCE

Sec.

§ 3401. Principles for Vermont's trauma-informed system of care.

The General Assembly adopts the following principles with regard to strengthening Vermont's response to trauma and toxic stress during childhood:

  1. Childhood trauma affects all aspects of society. Each of Vermont's systems addressing trauma, particularly social services; health care, including mental health; education; child care; and the justice system, shall collaborate to address the causes and symptoms of childhood trauma and to build resilience.
  2. Addressing trauma in Vermont requires building resilience in those individuals already affected and preventing childhood trauma within the next generation.
  3. Early childhood adversity is common and can be prevented. When adversity is not prevented, early intervention is essential to ameliorate the impacts of adversity. A statewide, community-based, interconnected, public health and social service approach is necessary to address this effectively. This model shall include training for local leaders to facilitate a cultural change around the prevention and treatment of childhood trauma.
  4. Service systems shall be integrated at the local and regional levels to maximize resources and simplify how systems respond to individual and family needs. All programs and services shall be evidence-informed and research-based, adhering to best practices in addressing trauma and promoting resilience.

    Added 2017, No. 43 , § 2.

§ 3402. Definitions.

As used in this chapter:

  1. "Childhood adversity" means experiences that may be traumatic to children and youths during the first 18 years of life, such as experiencing violence or other emotionally disturbing exposures in their homes or communities.
  2. "Resilience" means the ability to respond to, withstand, and recover from serious hardship with coping skills and a combination of protective factors, including a strong community, family support, social connections, knowledge of parenting and child development, concrete support in times of need, and social and emotional competence of children.
  3. "Toxic stress" means strong, frequent, or prolonged experience of adversity without adequate support.
  4. "Trauma-informed" means a type of program, organization, or system that recognizes the widespread impact of trauma and potential paths for recovery; recognizes the signs and symptoms of trauma in clients, families, staff, and others involved in a system; responds by fully integrating knowledge about trauma into policies, procedures, and practices; and seeks actively to resist retraumatization and build resilience among the population served.

    Added 2017, No. 204 (Adj. Sess.), § 3.

§ 3403. Director of Trauma Prevention and Resilience Development.

  1. There is created the permanent position of Director of Trauma Prevention and Resilience Development within the Office of the Secretary in the Agency of Human Services for the purpose of directing and coordinating systemic approaches across State government that build childhood resiliency and mitigate toxic stress by implementing a public health approach. The Director shall engage families and communities to build the protective factors of a strong community, family support, social connections, knowledge of parenting and child development, concrete support in times of need, and the social and emotional competence of children. It is the intent of the General Assembly that the Director position be funded by the repurposing of existing expenditures and resources, including the potential reassignment of existing positions. If the Secretary determines to fund this position by reassigning an existing position, he or she shall propose to the Joint Fiscal Committee prior to October 1, 2018 any necessary statutory modifications to reflect the reassignment.
  2. The Director shall:
    1. provide advice and support to the Secretary of Human Services and facilitate communication and coordination among the Agency's departments with regard to childhood adversity, toxic stress, and the promotion of resilience building;
    2. collaborate with both community and State partners, including the Agency of Education and the Judiciary, to build consistency between trauma-informed systems that address medical and social service needs and serve as a conduit between providers and the public;
    3. provide support for and dissemination of educational materials pertaining to childhood adversity, toxic stress, and the promotion of resilience building, including to postsecondary institutions within Vermont's State College System and the University of Vermont and State Agricultural College;
    4. coordinate with partners inside and outside State government, including the Child and Family Trauma Work Group;
    5. evaluate the statewide system, including the work of the Agency and the Agency's grantees and community contractors, that addresses resilience and trauma-prevention;
    6. evaluate, in collaboration with the Department for Children and Families and providers addressing childhood adversity prevention and resilience building services, strategies for linking pediatric primary care with the parent-child center network and other social services;
    7. coordinate the training of all Agency employees on childhood adversity, toxic stress, resilience building, and the Agency's Trauma-Informed System of Care policy and post training opportunities for child care providers, afterschool program providers, educators, and health care providers on the Agency's website; and
    8. serve as a resource in ensuring new models used by community social service providers are aligned with the State's goals for trauma-informed prevention and resilience.

      Added 2017, No. 204 (Adj. Sess.), § 4; amended 2019, No. 52 , § 3.

History

Amendments--2019. Subdiv. (b)(8): Added.

CHAPTER 35. CHILD CARE

Subchapter 1. Child Care Facilities

§ 3501. Division of Child Development; duties.

The Division of Child Development shall:

  1. encourage the development of a comprehensive child care services system that promotes the wholesome growth and educational development of children;
  2. facilitate the development of child care facilities;
  3. encourage and promote the provision by child care providers of parenting education, developmentally appropriate activities, and primary prevention services;
  4. facilitate cooperation between the private and public sectors to promote the expansion of child care services;
  5. promote continuing study of child care needs and the most effective methods by which these needs can be served through governmental and private programs;
  6. coordinate activities of the Division with other State agencies serving children and families;
  7. strive to make the State a model employer by encouraging it to offer a variety of child care benefit options to its employees;
  8. provide training for child care providers;
  9. support resource and referral services for parents and providers; and
  10. promote the involvement of businesses and communities in the development of child care services throughout the State by providing technical assistance to providers and potential providers of child care services.

    Added 1967, No. 147 , § 5; amended 1971, No. 181 (Adj. Sess.); 1973, No. 152 (Adj. Sess.), § 23, eff. April 14, 1974; 2013, No. 131 (Adj. Sess.), § 61, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--1973 (Adj. Sess.). Subsec. (a): Omitted "of social welfare" preceding "to do so".

Amendments--1971 (Adj. Sess.). Section amended generally.

Prior law. 33 V.S.A. § 2851.

Recodification. Former § 3501 related to foster care and was recodified as 33 V.S.A. § 4905 by 2013, No. 131 (Adj. Sess.), § 75.

§ 3502. Child care facilities; school age care in public schools; 21st Century Fund.

  1. Unless exempted under subsection (b) of this section, a person shall not operate a child care facility without a license or operate a family child care home without registration from the Department.
  2. The following persons are exempted from the provisions of subsection (a) of this section:
    1. a person providing care for children of not more than two families other than that of the person providing the care;
    2. a hospital or establishment holding a license issued by the Department of Health or a person operating a program primarily for recreational or therapeutic purposes, unless the hospital, establishment, or person provides services for the care, protection, and supervision of children not incidental to its primary purpose, in which case subsection (a) of this section shall apply to those nonincidental additional services;
    3. child care facilities operated by religious organizations for the care and supervision of children during or in connection with religious services or church sponsored activities;
    4. [Repealed.]
    5. an after-school program that serves students in one or more grades from kindergarten through secondary school, that receives funding through the 21st Century Community Learning Centers program, and that is overseen by the Agency of Education, unless the after-school program asks to participate in the child care subsidy program.
  3. A person who has a license to operate a child care facility shall not operate a family child care home. A person who operates a registered family child care home shall not operate a child care facility.
    1. Rules pertaining to child care facilities and family child care homes shall be designed to ensure that children in child care facilities and family child care homes are provided with wholesome growth and educational experiences and are not subjected to neglect, mistreatment, or immoral surroundings. (d) (1)  Rules pertaining to child care facilities and family child care homes shall be designed to ensure that children in child care facilities and family child care homes are provided with wholesome growth and educational experiences and are not subjected to neglect, mistreatment, or immoral surroundings.
    2. A licensed child care facility shall ensure that all individuals working at the facility receive orientation, based on materials recommended by the Agency of Human Services and the Agency of Education, on the prevention, identification, and mandatory reporting of child abuse, including child sexual abuse, signs and symptoms of sexual abuse, sexual violence, grooming processes, recognizing the dangers of child sexual abuse in and close to the home, and other predatory behaviors of sex offenders.
  4. At least each three years, the Department shall review the rules for licensure and registration for revision or updating.
  5. The Commissioner, upon request, and in the Commissioner's discretion, may grant waivers and variances to child-adult ratios if licensure is applied for by a registered child care facility.
  6. [Repealed.]
  7. Notwithstanding any provision of law to the contrary, the Agency of Human Services may provide technical assistance to schools in voluntarily meeting school age child care standards.
  8. [Repealed.]

    Added 1967, No. 147 , § 5; amended 1969, No. 254 (Adj. Sess.); 1971, No. 14 , § 21, eff. March 11, 1971; 1973, No. 152 (Adj. Sess.). § 24, eff. April 14, 1974; 1981, No. 171 (Adj. Sess.), § 3, eff. April 20, 1982; 2001, No. 61 , § 74, eff. June 16, 2001; 2005, No. 174 (Adj. Sess.), §§ 109, 140; 2007, No. 62 , § 8; 2007, No. 172 (Adj. Sess.), § 15; 2009, No. 1 , § 10; 2009, No. 44 , § 26, eff. May 21, 2009; 2013, No. 92 (Adj. Sess.), § 294, eff. Feb. 14, 2014; 2013, No. 131 (Adj. Sess.), § 62, eff. May 20, 2014; 2021, No. 20 , § 319.

History

Amendments--2021. Subdiv. (d)(1): Substituted "Rules" for "Regulations".

Subsec. (e): Substituted "rules" for "regulations".

Amendments--2013 (Adj. Sess.). Section heading: Act No. 131 substituted "school-age" for "school age".

Subdiv. (b)(2): Act No. 131 inserted "of this section" following "subsection (a)".

Subdivs. (b)(5), (d)(2): Act No. 92 substituted "Agency of Education" for "department of education".

Amendments--2009. Subdiv. (b)(5): Added by Act No. 44.

Subsec. (d): Act No. 1 added the subdiv. (1) designation and added subdiv. (2).

Subsec. (g): Deleted in its entirety by Act No. 44.

Amendments--2007 (Adj. Sess.). Subsec. (a): Substituted "child care home" for "day care home" following "family".

Amendments--2007. Subsec. (a): Added the second and third sentences.

Subdiv. (b)(4): Repealed.

Amendments--2005 (Adj. Sess.). Substituted "child" for "day" preceding "care" throughout the section and deleted "the department of social and rehabilitation services and" preceding "the agency" in subsecs. (g) and (h); repealed subsec. (i).

Amendments--2001. Added "school age care in public schools; 21st century fund" following "facilities" in the section heading and added subsecs. (g)-(i).

Amendments--1981 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (c): Relettered as subsec. (d) and new subsec. (c) added.

Subsec. (d): Relettered from subsec. (c) and references to family day care homes were added.

Subsecs. (e), (f): Added.

Amendments--1973 (Adj. Sess.). Subsec. (a): Substituted "office of child development" for "department".

Amendments--1971. Subdiv. (b)(4): Amended generally.

Amendments--1969 (Adj. Sess.) Subdiv. (b)(4): Amended generally.

Prior law. 33 V.S.A. § 2852.

ANNOTATIONS

Analysis

1. Due process.

Under section 2596 (now section 306) of this title and this section, registered operators of family day care centers have a property interest in continued registration which is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Gour v. Morse, 652 F. Supp. 1166 (D. Vt. 1987).

2. Civil rights actions.

Cause of action under federal civil rights statute, section 1983, in which day care licensee claimed retaliatory revocation of license accrued on date plaintiff relinquished license and withdrew application for registration as day care home pursuant to statements of Department of Social and Rehabilitation Services employee stating that plaintiff would never be licensed or registered in the future and her present license could be revoked. Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153 (1990), aff'd, 163 Vt. 219, 658 A.2d 924 (1995).

§ 3503. Corporal punishment prohibited.

  1. As used in this chapter, "corporal punishment" means the intentional infliction of physical pain upon the body of a child as a disciplinary measure.
  2. No person employed by or agent of a licensed or registered child care facility shall inflict or cause to be inflicted corporal punishment upon a child attending the facility. However, this section does not prohibit a person from using reasonable and necessary force:
    1. to quell a disturbance;
    2. to obtain possession of dangerous objects upon the person of or within the control of a child;
    3. for the purpose of self defense; or
    4. for the protection of persons or property.

      Added 1983, No. 145 (Adj. Sess.), § 2; amended 2007, No. 172 (Adj. Sess.), § 16; 2021, No. 20 , § 320.

History

Amendments--2021. Subsec. (a): Substituted "As used in" for "For the purpose of".

Amendments--2007 (Adj. Sess.). Subsec. (b): Substituted "child care facility" for "day care facility" following "registered".

Prior law. 33 V.S.A. § 2853.

§ 3504. Cannabis and tobacco use prohibited at child care facilities.

  1. No person shall be permitted to use cannabis as defined in 18 V.S.A. § 4201 or to cultivate cannabis, or use tobacco products or tobacco substitutes as defined in 7 V.S.A. § 1001 , on the premises, both indoor and outdoor, of any licensed child care center or afterschool program at any time.
  2. No person shall be permitted to use cannabis as defined in 18 V.S.A. § 4201 , tobacco products, or tobacco substitutes as defined in 7 V.S.A. § 1001 on the premises, both indoors and in any outdoor area designated for child care, of a licensed or registered family child care home while children are present and in care. If use of cannabis or smoking of tobacco products or tobacco substitutes occurs on the premises during other times, the family child care home shall notify prospective families prior to enrolling a child in the family child care home that their child will be exposed to an environment in which cannabis, tobacco products, or tobacco substitutes are used. Cultivation of cannabis in a licensed or registered family child care home is not permitted.
  3. A person who knowingly uses or cultivates cannabis in violation of this section commits a misdemeanor crime and shall be subject to the following penalties:
    1. a fine of not more than $500.00 for a first offense;
    2. a fine of not more than $750.00 for a second offense;
    3. a fine of not more than $1,000.00 for a third or subsequent offense.

      Added 2013, No. 135 (Adj. Sess.), § 5; amended 2017, No. 86 (Adj. Sess.), § 16.

History

2020. Substituted "cannabis" for "marijuana" throughout the section in accordance with 2019, No. 164 (Adj. Sess.), § 32 and 2019, No. 167 (Adj. Sess.), § 26.

Amendments--2017 (Adj. Sess.). Section amended generally.

§ 3505. Supplemental child care grants.

    1. The Commissioner for Children and Families may reserve up to one-half of one percent of the child care family assistance program funds for extraordinary financial relief to assist child care programs that are at risk of closing due to financial hardship. The Commissioner shall develop guidelines for providing assistance and shall prioritize extraordinary financial relief to child care programs in areas of the State with high poverty and low access to high quality child care. If the Commissioner determines a child care program is at risk of closure because its operations are not fiscally sustainable, he or she may provide assistance to transition children served by the child care operator in an orderly fashion and to help secure other child care opportunities for children served by the program in an effort to minimize the disruption of services. The Commissioner has the authority to request tax returns and other financial documents to verify the financial hardship and ability to sustain operations. (a) (1)  The Commissioner for Children and Families may reserve up to one-half of one percent of the child care family assistance program funds for extraordinary financial relief to assist child care programs that are at risk of closing due to financial hardship. The Commissioner shall develop guidelines for providing assistance and shall prioritize extraordinary financial relief to child care programs in areas of the State with high poverty and low access to high quality child care. If the Commissioner determines a child care program is at risk of closure because its operations are not fiscally sustainable, he or she may provide assistance to transition children served by the child care operator in an orderly fashion and to help secure other child care opportunities for children served by the program in an effort to minimize the disruption of services. The Commissioner has the authority to request tax returns and other financial documents to verify the financial hardship and ability to sustain operations.
    2. Annually on or before January 15, the Commissioner shall report to the Senate Committee on Health and Welfare and to the House Committee on Human Services regarding any funds distributed pursuant to subdivision (1) of this subsection. Specifically, the report shall address how funds were distributed and used. It shall also address results related to any distribution of funds.
  1. In instances in which extraordinary financial relief will not maintain ongoing access to high-quality child care, the Department for Children and Families may provide additional support to ensure access to high-quality, comprehensive child care that meets the needs of working parents in high-poverty areas of Vermont. Licensed child care programs may be considered for this additional financial support to help ensure ongoing access to high-quality child care in areas of the State where none exists, as determined by the Commissioner. Financial assistance may be granted, at the discretion of the Commissioner, if the child care program meets the following criteria:
    1. provides full-day child care year-round;
    2. serves infants and toddlers;
    3. is located in a high-poverty area without access to public transportation, as determined by the Commissioner;
    4. maintains a 5 star rating in the STep Ahead Recognition System (STARS) program;
    5. maintains a caseload in which at least 80 percent of enrollees receive a 100 percent child care subsidy; and
    6. receives child care subsidies as its primary source of program revenue.

      Added 2013, No. 179 (Adj. Sess.), § E.318; amended 2015, No. 58 , § E.318.

History

2013 (Adj. Sess.). This section was enacted as section 3504 of this title by 2013, No. 179 (Adj. Sess.), § E.318, but was redesignated as section 3505 to avoid conflict with section 3504 as enacted by 2013, No. 135 (Adj. Sess.), § 5.

Amendments--2015. Section amended generally.

Subchapter 2. Child Care Services

§ 3511. Definitions.

As used in this chapter:

  1. "Child" means an individual under 13 years of age.
  2. "Child care facility" means any place or program operated as a business or service on a regular or continuous basis, whether for compensation or not, whose primary function is protection, care, and supervision of children under 16 years of age outside their homes for periods of fewer than 24 hours a day by a person other than a child's own parent, guardian, or relative, as defined by rules adopted by the Department for Children and Families, but not including a kindergarten approved by the State Board of Education.
  3. "Child care provider" means a person licensed or registered by the Department for Children and Families, or authorized by the Department, to provide child care.
  4. "Child care services" include developmentally appropriate care and supervision for children under 13 years of age for fewer than 24 hours a day by a child care provider.
  5. "Commissioner" means the Commissioner for Children and Families.
  6. "Division" means the Child Development Division.
  7. "Family child care home" means a child care facility that provides care on a regular basis in the caregiver's own residence for not more than 10 children at any one time. Of this number, up to six children may be provided care on a full-time basis and the remainder on a part-time basis. As used in this subdivision, care of a child on a part-time basis shall mean care of a school-age child for not more than four hours a day. These limits shall not include children who reside in the residence of the caregiver, except:
    1. These part-time, school-age children may be cared for on a full-day basis during school closing days, snow days, and vacation days that occur during the school year.
    2. During the school summer vacation, up to 12 children may be cared for, provided that at least six of these children are of school age and a second staff person is present and on duty when the number of children in attendance exceeds six. These limits shall not include children who are required by law to attend school (seven years of age and older) and who reside in the residence of the caregiver.
  8. "Training" means an activity, approved by the Commissioner or the Commissioner's designee, that is likely to lead to employment or required to maintain employment.

    Added 1987, No. 205 (Adj. Sess.), § 6; amended 1997, No. 31 , § 1; 2005, No. 174 (Adj. Sess.), § 110; 2007, No. 172 (Adj. Sess.), § 17; 2013, No. 131 (Adj. Sess.), § 63, eff. May 20, 2014; 2019, No. 161 (Adj. Sess.), § 1, eff. Oct. 5, 2020; 2019, No. 161 (Adj. Sess.), § 2, eff. Sept. 1, 2021.

History

2013. - In subdiv. (3), deleted ", but not limited to," following "include" in accordance with 2013, No. 5 , § 4.

Amendments--2019 (Adj. Sess.) Subdiv. (7)(A): Section 1 of Act No. 161 inserted "remote learning days" preceding "snow days" and substituted "that" for "which" preceding "occur" in the first sentence and added the second sentence.

Subdiv. (7)(A): Section 2 of Act No. 161, effective September 1, 2021, deleted "remote learning days" preceding "snow days" in the first sentence and deleted the second sentence.

Amendments--2013 (Adj. Sess.). Added subdivs. (2) and (7) and redesignated the remaining subdivs. accordingly, substituted "13 years of age" for "the age of 13" in subdivs. (1) and present (4), and in present subdiv. (8), substituted "that" for "which" preceding "is likely to lead".

Amendments--2007 (Adj. Sess.). Subdiv. (2): Substituted "for children and families" for "of social and rehabilitation services" following "department" and "child care" for "day care" at the end of the sentence.

Subdiv. (5): Substituted "child development" for "division of child care services".

Amendments--2005 (Adj. Sess.). Subdiv. (4): Substituted "for children and families" for "of the department of social and rehabilitation services".

Amendments--1997. Subdiv. (1): Substituted "13" for "12".

Subdiv. (3): Substituted "13" for "12".

Prior law. 33 V.S.A. § 2861.

§ 3512. Child Care Financial Assistance Program; eligibility.

    1. The Child Care Financial Assistance Program is established to subsidize, to the extent that funds permit, the costs of child care for families that need child care services in order to obtain employment, to retain employment, or to obtain training leading to employment. Families seeking employment shall be entitled to participate in the Program for up to three months and the Commissioner may further extend that period. (a) (1)  The Child Care Financial Assistance Program is established to subsidize, to the extent that funds permit, the costs of child care for families that need child care services in order to obtain employment, to retain employment, or to obtain training leading to employment. Families seeking employment shall be entitled to participate in the Program for up to three months and the Commissioner may further extend that period.
    2. The subsidy authorized by this subsection shall be established by the Commissioner, by rule, and shall bear a reasonable relationship to income and family size. Families shall be found eligible using an income eligibility scale based on the current federal poverty level and adjusted for the size of the family. Co-payments shall be assigned to the whole family and shall not increase if more than one eligible child is enrolled in child care. Families with an annual gross income of less than or equal to 150 percent of the current federal poverty guidelines shall not have a family co-payment. Families with an annual gross income up to and including 350 percent of current federal poverty guidelines, adjusted for family size, shall be eligible for a subsidy authorized by the subsection. The scale shall be structured so that it encourages employment. If the federal poverty guidelines decrease in a given year, the Division shall maintain the previous year's federal poverty guidelines for the purpose of determining eligibility and benefit amount under this subsection.
    3. Earnings deposited in a qualified child education savings account, such as the Vermont Higher Education Investment Plan, established in 16 V.S.A. § 2877 , or any similar plan qualified under 26 U.S.C. § 529, shall be disregarded in determining the amount of a family's income for the purpose of determining continuing eligibility.
    4. After September 30, 2021, a regulated center-based child care program or family child care home as defined by the Department in rule shall not receive funds pursuant to this subsection that are in excess of the usual and customary rate for services at the center-based child care program or family child care home.
    1. An Enhanced Child Care Services Subsidy Program is established for families participating in the Reach Ahead program. (b) (1)  An Enhanced Child Care Services Subsidy Program is established for families participating in the Reach Ahead program.
    2. The Enhanced Child Care Services Subsidy Program established by this subsection shall be administered by the Department's Child Development Division. The Commissioner shall adopt rules necessary for the administration of the Program pursuant to 3 V.S.A. chapter 25.
    3. The subsidy authorized by this subsection shall be no greater than 100 percent of the subsidy provided in subsection (a) of this section.
    4. A participating family shall remain eligible for the Enhanced Child Care Services Subsidy Program between 12 and 24 months as long as one or more dependent children of a working parent or parents are receiving child care services. The Commissioner for Children and Families may extend the subsidy beyond 24 months if the Commissioners for Children and Families and of Finance and Management determine jointly that an extension can be accommodated within appropriated resources.
    5. The Enhanced Child Care Services Subsidy Program shall be funded through savings resulting from caseload reductions in the Reach Up program. If there are insufficient savings from caseload reductions to fund the Program, the Program shall be suspended or modified.

      Added 1987, No. 205 (Adj. Sess.), § 6; amended 2007, No. 30 , § 23, eff. May 17, 2007; 2009, No. 1 (Sp. Sess.), § E.318.1; 2013, No. 198 (Adj. Sess.), § 5, eff. July 1, 2015; 2017, No. 29 , § 3; 2019, No. 72 , § E.318; 2021, No. 45 , § 2, eff. Oct. 1, 2021.

History

Amendments--2021. Subdiv. (a)(2): Amended generally.

Amendments--2019. Subdiv. (a)(1): In the second sentence, substituted "up to three months and" for "a period in excess of one month, unless that period is extended by", and added "may further extend that period" to the end of the sentence.

Subdiv. (a)(2): Inserted "current" following "100 percent of the" in the third sentence; inserted "current" following "200 percent of the" in the fourth sentence; and added the last sentence.

Subdiv. (a)(4): Added.

Amendments--2017. Substituted "The" for "A" and "Financial Assistance" for "Services" in the section heading and in subdiv. (a)(1) and added subdiv. (a)(3).

Amendments--2013 (Adj. Sess.). Section heading: Substituted "Programs" for "program" following "Services".

Subdiv. (a)(2): Substituted "subsection" for "section" following "authorized by this".

Subdivs. (b)(1)-(b)(5): Added.

Effective date of amendments to subdiv. (a)(2). 2021, No. 45 , § 16(b) provides that the amendments to subdiv. (a)(2) of this section shall take effect on October 1, 2021.

Legislative intent. 2021, No. 45 , § 1 provides: "It is the intent of the General Assembly:

"(1) that immediate investments are necessary to support Vermont's economy, ensure that all families with young children have affordable access to high-quality child care and early education, and that Vermont's early childhood educators are fairly compensated and well supported; and

"(2) to continue and build upon the five-year redesign of the Child Care Financial Assistance Program that began in fiscal year 2020."

Legislative intent; Child Care Financial Assistance Program. 2021, No. 45 , § 4 provides: "It is the intent of the General Assembly that:

"(1) consideration be made in fiscal years 2023 through 2026 to progressively adjust the upper income limit of the Child Care Financial Assistance Program fee scale each year; and

"(2) the co-payment at the upper limit of the income eligibility scale for a family participating in the Child Care Financial Assistance Program shall not exceed 10 percent of a family's annual gross income."

§ 3513. Protective and family support child care services.

The Division shall establish a program that subsidizes, in whole or in part, the cost of child care services provided to protective services children or to families for the purpose of preserving, rehabilitating, or reunifying such families.

Added 1987, No. 205 , (Adj. Sess.), § 6; amended 2013, No. 131 (Adj. Sess.), § 64, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Made a minor stylistic change.

Prior law. 33 V.S.A. § 2863.

§ 3514. Payment to providers.

  1. The Commissioner shall establish a payment schedule for purposes of reimbursing providers for full- or part-time child care services rendered to families who participate in the programs established under section 3512 or 3513 of this title. Payments established under this section shall reflect the following considerations: whether the provider operates a licensed child care facility or a registered family child care home, type of service provided, cost of providing the service, and the prevailing market rate for comparable service. Payments shall be based on enrollment status or any other basis agreed to by the provider and the Division.
  2. The Commissioner may establish a separate payment schedule for child care providers who have received specialized training, approved by the Commissioner, relating to protective or family support services.
    1. The payment schedule established by the Commissioner may reimburse providers in accordance with the results of the most recent Vermont Child Care Market Rate Survey. (c) (1)  The payment schedule established by the Commissioner may reimburse providers in accordance with the results of the most recent Vermont Child Care Market Rate Survey.
    2. The payment schedule shall include reimbursement rate caps tiered in relation to provider ratings in the Vermont STARS program. The lower limit of the reimbursement rate caps shall be not less than the 50th percentile of all reported rates for the same provider setting in each rate category.

      Added 1987, No. 205 (Adj. Sess.), § 6; amended 2005, No. 174 (Adj. Sess.), § 111; 2021, No. 45 , § 3, eff. Oct. 1, 2021.

History

Amendments--2021. Subsec. (c): Added.

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "child" for "day" preceding "care" in two places in the second sentence.

Effective date of subsec. (c). 2021, No. 45 , § 16(b) provides that subsec. (c) of this section shall take effect on October 1, 2021.

Prior law. 33 V.S.A. § 2864.

Subchapter 3. Child Care Facilities Financing Program

History

Amendments--2005 (Adj. Sess.). In subchapter heading, substituted "Child" for "Day" preceding "care".

§ 3521. Child Care Facilities Financing Program established.

  1. A Child Care Facilities Loan Financing Program is established to facilitate the development or expansion of child care facilities in this State.
  2. The Program shall be administered by the Office of Economic Opportunity within the Agency of Human Services.
  3. [Repealed.]

    Added 1987, No. 206 (Adj. Sess.); amended 1989, No. 225 (Adj. Sess.), § 25(b); 1995, No. 180 (Adj. Sess.), § 38(a); 1995, No. 188 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 112; 2013, No. 131 (Adj. Sess.), § 65, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Section heading: Deleted "; advisory board" at the end.

Amendments--2005 (Adj. Sess.). Section heading: Substituted "Child" for "Day" preceding "care".

Subsec. (a): Substituted "child" for "day" preceding "care" in two places.

Amendments--1995 (Adj. Sess.) Subsec. (c): Act No. 180 substituted "commissioner of banking, insurance, securities, and health care administration" for "commissioner of banking, insurance, and securities".

Repealed by Act No. 188.

Amendments--1989 (Adj. Sess.). Subsec. (c): Substituted "commissioner of banking, insurance, and securities" for "commissioner of banking and insurance" in the third sentence.

Prior law. 33 V.S.A. § 3721.

§ 3522. Loan program.

  1. The State Economic Opportunity Office shall administer a low-interest loan program.
  2. Loans may be made to persons unable to obtain conventional financing for the purpose of establishing or expanding or renovating a child care facility in this State. The terms of the loans shall be determined by the State Economic Opportunity Office, but shall not be made in an amount in excess of $10,000.00 to any single applicant, nor at a rate to exceed eight and one-half percent, simple interest per annum.
  3. A Child Care Facilities Financing Revolving Loan Fund shall be established for the Child Care Facilities Financing Program within the State Economic Opportunity Office of the Agency of Human Services. The Fund shall contain appropriations provided for that purpose and all repayments of principal and interest of loans under this section. Interest earnings may be used for administration of this Program.
  4. The Director of the Office of Economic Opportunity shall establish by rule, the criteria, conditions, and procedures that will be used in administering the provisions of this subchapter.

    Added 1987, No. 206 (Adj. Sess.); amended 1995, No. 188 (Adj. Sess.), § 7; 2005, No. 174 (Adj. Sess.), § 113.

History

Revision note. Substituted "this subchapter" for "this chapter" in subsec. (d), in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments--2005 (Adj. Sess.). Subsecs. (b), (c): Substituted "child" for "day" preceding "care".

Amendments--1995 (Adj. Sess.) Subsec. (b): Substituted "state economic opportunity office" for "advisory board" following "state" in the second sentence, and deleted the third sentence.

Prior law. 33 V.S.A. § 3722.

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. chapter 25.

§ 3523. Repealed. 1995, No. 188, § 4.

History

Former § 3523. Former § 3523, relating to annual reports, was derived from 1987, No. 206 (Adj. Sess.).

Subchapter 4. Child Care Facilities Financing

§ 3531. Child care - Building Bright Spaces for Bright Futures Funds.

  1. A child care facilities financing program is established to facilitate the development and expansion of child care facilities in the State. The Program shall be administered by the Department for Children and Families.
  2. The Program shall be supported from a special fund, to be known as the "Building Bright Spaces for Bright Futures Fund," referred to in this section as "the Bright Futures Fund," hereby created for this purpose to be administered by the Commissioner for Children and Families. Subject to approvals required by 32 V.S.A § 5, the Fund may accept gifts and donations from any source, and the Commissioner may take appropriate actions to encourage contributions and designations to the account, including publicizing explanations of the purposes of the Fund and the uses to which the Bright Futures Fund has been or will be applied.
  3. Funds appropriated for this Program shall be used by the Commissioner to award grants to eligible applicants for the development and expansion of child care options and community programs targeted for youths 14 through 18 years of age. These options may include recreational programs and related equipment or facilities, development or expansion of child care facilities, and community-based programs that address specific child care and youth program needs of the applicant region. The Commissioner shall establish by rule, criteria, conditions, and procedures for awarding such grants and administering this Program.

    Added 2001, No. 142 (Adj. Sess.), § 139; amended 2003, No. 66 , § 138; 2013, No. 131 (Adj. Sess.), § 66, eff. May 20, 2014; 2021, No. 20 , § 321.

History

2013. - Changed "Department of Social and Rehabilitation Services" in subsec. (a) to "Department for Children and Families" and "Commissioner of Social and Rehabilitation Services" in subsec. (b) to "Commissioner for Children and Families" to update name of agency.

Amendments--2021. Subsec. (b): In the first sentence, deleted "hereinafter" preceding "referred to" and inserted "in this section" following "referred to".

Amendments--2013 (Adj. Sess.). Subsec. (c): Substituted "14 through 18 years of age" for "aged 14 through 18" following "targeted for youths".

Subchapter 5. Workforce

§ 3541. Scholarships for current early childhood providers.

  1. There is established a need-based scholarship program for individuals employed by a regulated, privately operated center-based child care program or family child care home while acquiring credits in early childhood development or that are related directly to working with children from birth through eight years of age.
  2. The Department for Children and Families may contract for the administration of the program set forth in subsection (a) of this section and adopt policies, procedures, and guidelines necessary for its implementation.
  3. Scholarships distributed pursuant to this section shall be available on a first-come, first-served basis until any appropriated funds are depleted.
  4. Subsection (d) repealed effective July 1, 2026.  An individual shall not simultaneously participate in the scholarship program set forth in this section and the student loan repayment assistance program set forth in section 3543 of this title.

    Added 2021, No. 45 , § 6.

History

Prospective repeal of subsec. (d). 2021, No. 45 , § 8(a) provides that subsec. (d) of this section shall be repealed on July 1, 2026.

§ 3542. Scholarships for prospective early childhood providers. Section 3542 repealed effective July 1, 2026.

    1. There is established a need-based scholarship program for individuals pursuing a college degree in early childhood education or early childhood special education. The scholarship program shall provide financial assistance up to the full cost of tuition for an eligible individual. (a) (1)  There is established a need-based scholarship program for individuals pursuing a college degree in early childhood education or early childhood special education. The scholarship program shall provide financial assistance up to the full cost of tuition for an eligible individual.
    2. An eligible individual shall:
      1. attend a Vermont college or university at least part-time;
      2. be pursuing an associates or bachelor's degree in early childhood education or early childhood special education; and
      3. commit to working in a regulated, privately operated center-based child care program or family child care home in Vermont for years equal to those in which scholarship monies are sought under this section.
    1. The Department for Children and Families shall adopt policies, procedures, and guidelines necessary for implementation of the program described in subsection (a) of this section. (b) (1)  The Department for Children and Families shall adopt policies, procedures, and guidelines necessary for implementation of the program described in subsection (a) of this section.
    2. The Department may contract for the administration of the program. Administration costs shall not be more than 10 percent of the total appropriation received to implement this section.
    1. Scholarships distributed pursuant to this section shall be available on a first-come, first-served basis until any appropriated funds are depleted. (c) (1)  Scholarships distributed pursuant to this section shall be available on a first-come, first-served basis until any appropriated funds are depleted.
    2. An eligible individual who does not work the required number of years in a regulated, privately operated center-based child care program or family child care home in Vermont after completion of the individual's degree program shall repay scholarship monies received under this section commensurate with the balance of the eligible individual's time commitment.
  1. An individual shall not simultaneously participate in the scholarship program set forth in this section and the student loan repayment assistance program set forth in section 3543 of this title.

    Added 2021, No. 45 , § 6.

History

Prospective repeal of section. 2021, No. 45 , § 8(b) provides that this section shall be repealed on July 1, 2026.

§ 3543. Student loan repayment assistance. Section 3543 repealed effective July 1, 2026.

    1. There is established a need-based student loan repayment assistance program for the purpose of providing student loan repayment assistance to any individual employed by a regulated, privately operated center-based child care program or family child care home. (a) (1)  There is established a need-based student loan repayment assistance program for the purpose of providing student loan repayment assistance to any individual employed by a regulated, privately operated center-based child care program or family child care home.
    2. An eligible individual shall:
      1. work in a privately operated center-based child care program or in a family child care home that is regulated by the Division for at least an average of 30 hours per week for 48 weeks of the year;
      2. receive an annual salary of not more than $50,000.00; and
      3. have earned an associates or bachelor's degree with a major concentration in early childhood, child and human development, elementary education, special education with a birth to age eight focus, or child and family services within the preceding five years.
    3. To participate in the program set forth in this section, an eligible individual shall submit to the Department for Children and Families documentation expressing the individual's intent to work in a regulated, privately operated center-based child care program or family child care home for at least the 12 months following the annual loan repayment award notification. A participant may receive up to $4,000.00 annually in student loan repayment assistance, which shall be distributed by the Department in four allotments. The Department shall distribute at least one-quarter of the individual's total annual benefit after the individual has completed three months of employment in accordance with the program. The remainder of an individual's total annual benefit shall be distributed by the Department every three months after the initial payment.
    1. The Department shall adopt policies, procedures, and guidelines necessary to implement the provisions of this section. (b) (1)  The Department shall adopt policies, procedures, and guidelines necessary to implement the provisions of this section.
    2. Student loan repayments shall be available pursuant to this section on a first-come, first-served basis until appropriated funds are depleted.
    3. The Department may contract for the administration of the program. Administration costs shall not be more than 10 percent of the total appropriation received to implement this section.
  1. An individual shall not simultaneously participate in the student loan repayment assistance program set forth in this section and either of the scholarship programs set forth in section 3541 or 3542 of this title.

    Added 2021, No. 45 , § 6.

History

Prospective repeal of section. 2021, No. 45 , § 8(c) provides that this section shall be repealed on July 1, 2026.

CHAPTER 36. EARLY CARE AND EDUCATION PROVIDERS LABOR RELATIONS ACT

Sec.

History

Negotiations; early care and education providers. 2013, No. 187 (Adj. Sess.), § 3 provides: "The State's cost of negotiating an agreement pursuant to 33 V.S.A. chapter 36 shall be borne by the State out of existing appropriations made to it for administrative expenditures by the General Assembly. These costs shall not be funded by appropriations made for benefit payments."

§ 3601. Purpose.

  1. The General Assembly recognizes the right of all early care and education providers to bargain collectively with the State over matters within the State's control and identified as subjects of bargaining pursuant to subsection 3603(b) of this chapter.
  2. The General Assembly intends to create an opportunity for early care and education providers to choose to form a union and bargain with the State over matters within the State's control and identified as subjects of bargaining pursuant to subsection 3603(b) of this chapter.
  3. Specific terms and conditions of employment, which are the subject of traditional collective bargaining between employers and employees, are outside the limited scope of this chapter.
  4. The matters subject to this chapter are those within the control of the State of Vermont and relevant to all early care and education providers.
  5. Early care and education providers do not forfeit their rights under the National Labor Relations Act, 29 U.S.C. §§ 151-169, or the Vermont State Labor Relations Act, 21 V.S.A. §§ 1501-1624 , by becoming members of an organization that represents them in their dealings with the State. The terms and conditions of employment with individual early care and education providers, which are the subjects of traditional collective bargaining between employers and employees and which are governed by federal law, fall outside the limited scope of bargaining defined in this chapter.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3602. Definitions.

As used in this chapter:

  1. "Board" means the State Labor Relations Board established under 3 V.S.A. § 921 .
  2. "Collective bargaining" or "bargaining collectively" means the process by which the State and the exclusive representative of early care and education providers negotiate terms or conditions related to the subjects of collective bargaining identified in subsection 3603(b) of this chapter that when reached and funded shall be legally binding.
  3. "Early care and education provider" means a licensed child care home provider, a registered child care home provider, or a legally exempt child care home provider, which is defined by the Legally Exempt Child Care Provider Requirements set forth by the Vermont Department for Children and Families, Child Development Division, who provides child care services as defined in subdivision 3511(4) of this title.
  4. "Exclusive representative" means the labor organization that has been elected or recognized and certified by the Board under this chapter and consequently has the exclusive right under section 3608 of this chapter to represent early care and education providers for the purpose of collective bargaining and the enforcement of any contract provisions.
  5. "Grievance" means the exclusive representative's formal written complaint regarding an improper application of one or more terms of the collective bargaining agreement.
  6. "Subsidy payment" means any payment made by the State to assist families in paying for child care services through the State's child care financial assistance program.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3603. Establishment of collective bargaining.

  1. Early care and education providers, through their exclusive representative, shall have the right to bargain collectively with the State through the Governor's designee.
    1. Mandatory subjects of bargaining are limited to: (b) (1)  Mandatory subjects of bargaining are limited to:
      1. child care subsidy reimbursement rates and payment procedures, excluding quality standards and payment schedules associated with the STep Ahead Recognition System (STARS);
      2. professional development;
      3. the collection of dues and disbursement to the exclusive representative;
      4. agency fees and disbursement to the exclusive representative; and
      5. procedures for resolving grievances.
    2. The parties may also negotiate on any mutually agreed matters that are not in conflict with State or federal law.
  2. The State, acting through the Governor's designee, shall meet with the exclusive representative for the purpose of entering into a written agreement.
  3. Early care and education providers shall be considered employees, and the State shall be considered the employer, solely for the purpose of collective bargaining under this chapter. Early care and education providers shall be considered State employees for purposes of collective bargaining. Early care and education providers shall not be considered State employees for any other reason, including for purposes of vicarious liability in tort, unemployment compensation, or workers' compensation. Early care and education providers shall not be eligible for participation in the State Employees Retirement System or the health insurance plans available to Executive Branch employees solely by virtue of bargaining under this chapter.
  4. An early care and education providers' organization shall not charge the agency fee unless it has established and maintained a procedure to provide nonmembers with:
    1. an audited financial statement that identifies the major categories of expenses and divides them into chargeable and nonchargeable expenses;
    2. an opportunity to object to the amount of the agency fee sought, and to place in escrow any amount reasonably in dispute; and
    3. prompt arbitration by the Vermont Labor Board to resolve any objections over the agency fee.
  5. Agency fees, if successfully bargained, shall be based on the proportionate amount of subsidies an early care and education provider receives.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3604. Rights of early care and education providers.

Early care and education providers shall have the right to:

  1. organize, form, join, or assist any union or labor organization for the purpose of collective bargaining without any interference, restraint, or coercion;
  2. bargain collectively through a representative of their own choice;
  3. engage in concerted activities for the purpose of supporting or engaging in collective bargaining;
  4. pursue grievances through the exclusive representative as negotiated pursuant to this chapter; and
  5. refrain from any or all such activities.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3605. Rights of the State.

Nothing in this chapter shall be construed to interfere with the right of the State to:

  1. carry out the statutory mandate and goals of the Agency of Human Services and to use personnel, methods, and means in the most appropriate manner possible;
  2. with the approval of the Governor, take whatever action may be necessary to carry out the mission of the Agency of Human Services in an emergency situation;
  3. comply with federal and State laws, rules, and regulations regarding child care and child care subsidies;
  4. enforce child care rules and regulatory processes, including rules regarding the qualifications of early care and education providers and the prevention of abuse in connection with the provisions of child care services;
  5. develop child care rules and regulatory processes subject to the rulemaking authority of the General Assembly and the Human Services Board;
  6. establish and administer quality standards under the STep Ahead Recognition System;
  7. solicit and accept for use any grant of money, services, or property from the federal government, the State, or any political subdivision or agency of the State, including federal matching funds, and to cooperate with the federal government or any political subdivision or agency of the State in making an application for any grant; and
  8. refuse to take any action that would diminish the quantity or quality of child care provided under existing law.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014; amended 2021, No. 20 , § 322.

History

Amendments--2021. Subdiv. (3): Inserted ", rules," following "laws”.

Subdiv. (4): Substituted "rules" for "regulations" twice.

Subdiv. (5): Substituted "rules" for "regulations".

§ 3606. Bargaining unit.

  1. The bargaining unit shall be composed of licensed home child care providers, registered home child care providers, and legally exempt child care providers, as defined in this chapter, who have an agreement with the Department to accept a subsidy.
  2. Early care and education providers may select an exclusive representative for the purpose of collective bargaining by using the procedures in sections 3607 and 3608 of this chapter.
  3. The exclusive representative of the early care and education providers is required to represent all of the providers in the unit without regard to membership in the union.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3607. Petitions for election; filing; investigations; hearings; determinations.

  1. A petition may be filed with the Board in accordance with rules prescribed by the Board:
    1. By an early care and education provider or group of providers or any individual or labor organization acting on the providers' behalf:
      1. alleging that not less than 30 percent of the providers in the petitioned bargaining unit wish to be represented for collective bargaining and that the State declines to recognize their representative as the representative defined in this chapter; or
      2. asserting that the labor organization that has been certified as the bargaining representative no longer represents a majority of early care and education providers.
    2. By the State alleging that one or more individuals or labor organizations have presented a claim to be recognized as the exclusive representative defined in this chapter.
  2. The Board shall investigate the petition and, if it has reasonable cause to believe that a question concerning representation exists, shall conduct a hearing. The hearing shall be held before the Board, a member of the Board, or its agents appointed for that purpose upon due notice. Written notice of the hearing shall be mailed by certified mail to the parties named in the petition not less than seven days before the hearing. If the Board finds upon the record of the hearing that a question of representation exists, it shall conduct an election by secret ballot and certify to the parties, in writing, the results of the election.
  3. In determining whether or not a question of representation exists, the Board shall apply the same rules of decision making regardless of the identity of the persons filing the petition or the kind of relief sought.
  4. Nothing in this chapter prohibits the waiving of hearings by stipulation for a consent election in conformity with rules of the Board.
  5. For the purposes of this chapter, the State may voluntarily recognize the exclusive representative of a unit of early care and education providers if the labor organization demonstrates that it has the support of a majority of the providers in the unit it seeks to represent and no other employee organization seeks to represent the providers.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014; amended 2021, No. 20 , § 323.

History

Amendments--2021. Subsec. (a): Substituted "rules" for "regulations" in the intro. para.

Subsecs. (c), (d): Deleted "regulations and" preceding "rules".

§ 3608. Election; runoff elections.

  1. If a question of representation exists, the Board shall conduct a secret ballot election to determine the exclusive representative of the unit of early care and education providers. The original ballot shall be prepared to permit a vote against representation by anyone named on the ballot. The labor organization receiving a majority of votes cast shall be certified by the Board as the exclusive representative of the unit of early care and education providers. In any election in which there are three or more choices, including the choice of "no union," and none of the choices on the ballot receives a majority, a runoff election shall be conducted by the Board. The ballot shall provide for a selection between the two choices receiving the largest and second largest number of valid votes cast in the election.
  2. An election shall not be directed if in the preceding 12 months a valid election has been held.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3609. Powers of representatives.

The exclusive representative shall be the exclusive representative of all the early care and education providers in the unit for the purposes of collective bargaining and the resolution of grievances.

Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3610. Negotiated agreement; funding.

  1. If the State and the exclusive representative reach an agreement, the Governor shall request from the General Assembly an appropriation sufficient to fund the agreement in the next operating budget. If the General Assembly appropriates sufficient funds, the negotiated agreement shall become effective and binding at the beginning of the next fiscal year. If the General Assembly appropriates a different amount of funds, the terms of the agreement affected by that appropriation shall be renegotiated based on the amount of funds actually appropriated by the General Assembly and shall become effective and legally binding in the next fiscal year.
  2. Collective bargaining agreements shall be for a maximum term of two years and shall not be subject to cancellation or renegotiation during the term except with the mutual consent in writing of both parties, which consent shall be filed with the Board. Upon the filing of such consent, an agreement may be supplemented, cancelled, or renegotiated.
  3. The agreement shall terminate at the expiration of its specified term. Negotiations for a new agreement shall be commenced, upon the request of either party, at any time within one year before the expiration date of the current agreement. The parties may mutually agree to commence negotiations for a new collective bargaining agreement more than one year before the expiration date of the current agreement.
  4. In the event the State of Vermont and the collective bargaining unit are unable to arrive at an agreement and there is not an existing agreement in effect, the existing contract shall remain in force until a new contract is ratified by the parties. However, nothing in this subsection shall prohibit the parties from agreeing to a modification of certain provisions of the existing contract that, as amended, shall remain in effect until a new contract is finalized and funded by the General Assembly.
  5. The Board is authorized to enforce compliance with all provisions of a collective bargaining agreement upon complaint of either party. In the event a complaint is made by either party to an agreement, the Board shall proceed in the manner prescribed in section 3612 of this chapter relating to the prevention of unfair labor practices.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014; amended 2021, No. 20 , § 324.

History

Amendments--2021. Subsec. (c): Amended generally.

§ 3611. Mediation; fact-finding; last best offer.

  1. If, after a reasonable period of negotiation, the exclusive representative and the State reach an impasse, the Board upon petition of either party may authorize the parties to submit their differences to mediation. Within five days after receipt of the petition, the Board shall appoint a mediator who shall communicate with the parties and attempt to mediate an amicable settlement. A mediator shall be of high standing and not affiliated with either labor or management.
  2. If, after a minimum of 15 days after the appointment of a mediator, the impasse is not resolved, the mediator shall certify to the Board that the impasse continues.
  3. Upon the request of either party, the Board shall appoint a fact finder who has been mutually agreed upon by the parties. If the parties fail to agree on a fact finder within five days, the Board shall appoint a fact finder who shall be a person of high standing and shall not be affiliated with either labor or management. A member of the Board or any individual who has actively participated in mediation proceedings for which fact-finding has been called shall not be eligible to serve as a fact finder under this section unless agreed upon by the parties.
  4. The fact finder shall conduct hearings pursuant to rules of the Board. Upon request of either party or of the fact finder, the Board may issue subpoenas of persons and documents for the hearings and the fact finder may require that testimony be given under oath and may administer oaths.
  5. Nothing in this section shall prohibit the fact finder from mediating the dispute at any time prior to issuing recommendations.
  6. In making a recommendation, the fact finder shall consider whether the proposal increases the amount and quality of care provided to children and families in a manner that is more affordable for Vermont families and citizens and whether the subsidies provided are consistent with federal guidance.
  7. Upon completion of the hearings, the fact finder shall file written findings and recommendations with both parties.
  8. The costs of witnesses and other expenses incurred by either party in fact-finding proceedings shall be paid directly by the parties incurring them, and the costs and expenses of the fact finder shall be paid equally by the parties. The fact finder shall be paid a rate mutually agreed upon by the parties for each day or any part of a day while performing fact-finding duties and shall be reimbursed for all reasonable and necessary expenses incurred in the performance of his or her duties. A statement of fact-finding per diem and expenses shall be certified by the fact finder and submitted to the Board for approval. The Board shall provide a copy of approved fact-finding costs to each party with its order apportioning one-half of the total to each party for payment. Each party shall pay its half of the total within 15 days after receipt of the order. Approval by the Board of the fact finder's costs and expenses and its order for payment shall be final as to the parties.
  9. If the dispute remains unresolved 15 days after transmittal of findings and recommendations, each party shall submit to the Board its last best offer on all disputed issues as a single package. Each party's last best offer shall be filed with the Board under seal and shall be unsealed and placed in the public record only when both parties' last best offers are filed with the Board. The Board may hold hearings and consider the recommendations of the fact finder. Within 30 days of the certifications, the Board shall select between the last best offers of the parties, considered in their entirety without amendment, and shall determine that selection's cost. The Board shall not issue an order under this subsection that is in conflict with any law or rule or that relates to an issue that is not a mandatory subject of collective bargaining. The Board shall determine the cost of the agreement selected and recommend to the General Assembly its choice with a request for appropriation. If the General Assembly appropriates sufficient funds, the agreement shall become effective and legally binding at the beginning of the next fiscal year. If the General Assembly appropriates a different amount of funds, the terms of the agreement affected by that appropriation shall be renegotiated based on the amount of funds actually appropriated by the General Assembly, and the agreement with the negotiated changes shall become effective and binding at the beginning of the next fiscal year.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3612. General duties and prohibited conduct.

  1. The State and all early care and education providers and their representatives shall exert every reasonable effort to make and maintain agreements concerning matters allowable under this chapter and to settle all disputes, whether arising out of the application of those agreements or growing out of any disputes concerning those agreements. However, this obligation does not compel either party to agree to a proposal or make a concession.
  2. It shall be an unfair labor practice for the State to:
    1. interfere with, restrain, or coerce early care and education providers in the exercise of their rights under this chapter or by any other law, rule, or regulation;
    2. dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it;
    3. discriminate against an early care and education provider because of the provider's affiliation with a labor organization or because a provider has filed charges or complaints or has given testimony under this chapter;
    4. discriminate against an early care and education provider because the provider has taken actions such as signing a petition, grievance, or affidavit that demonstrates the provider's support for a labor organization;
    5. refuse to bargain collectively in good faith with the exclusive representative;
    6. discriminate against an early care and education provider based on race, color, religion, ancestry, age, sex, sexual orientation, gender identity, national origin, place of birth, or marital status, or against a qualified disabled individual; or
    7. request or require an early care and education provider to have an HIV-related blood test or discriminate against a provider on the basis of HIV status of the provider.
  3. It shall be an unfair labor practice for the exclusive representative to:
    1. Restrain or coerce early care and education providers in the exercise of the rights guaranteed to them under this chapter or by law, rule, or regulation. However, a labor organization may prescribe its own rules with respect to the acquisition or retention of membership, provided such rules are not discriminatory.
    2. Cause or attempt to cause the State to discriminate against an early care and education provider or to discriminate against a provider.
    3. Refuse to bargain collectively in good faith with the State.
    4. Threaten to or cause a provider to strike or curtail the provider's services in recognition of a picket line of any employee or labor organization.
  4. Early care and education providers shall not strike or curtail their services for which they receive State payment in recognition of a picket line of any employee or labor organization.
  5. Complaints related to this section shall be made and resolved in accordance with procedures set forth in 3 V.S.A. § 965 .

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3613. Antitrust exemption.

The activities of early care and education providers and their exclusive representatives that are necessary for the exercise of their rights under this chapter shall be afforded State action immunity under applicable federal and State antitrust laws. The State intends that the "State action" exemption to federal antitrust laws be available only to the State, to early care and education providers, and to their exclusive representative in connection with these necessary activities. Exempt activities shall be actively supervised by the State.

Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3614. Rights unaltered.

  1. This chapter does not alter or infringe upon the rights of:
    1. a parent or legal guardian to select and discontinue child care services of any early care and education provider;
    2. an early care and education provider to choose, direct, and terminate the services of any employee that provides care in that home; or
    3. the Judiciary and General Assembly to make programmatic modifications to the delivery of State services through child care subsidy programs, including standards of eligibility for families, legal guardians, and providers participating in child care subsidy programs, and to the nature of services provided.
  2. Nothing in this chapter shall affect the rights and obligations of private sector employers and employees under the National Labor Relations Act, 29 U.S.C. §§ 151-169, or the Vermont State Labor Relations Act, 21 V.S.A. §§ 1501-1624 . The terms and conditions of employment with individual early care and education providers, which are the subjects of traditional collective bargaining between employers and their employees and which are governed by federal laws, fall outside the limited scope of bargaining defined in this chapter.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3615. Rules.

The Board shall make and may amend, rescind, and adopt such rules consistent with this chapter as may be necessary to carry out the provisions of this chapter.

Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014; amended 2021, No. 20 , § 325.

History

Amendments--2021. Section amended generally.

§ 3616. Appeal.

  1. Any person aggrieved by an order or decision of the Board issued under the authority of this chapter may appeal on questions of law to the Supreme Court.
  2. An order of the Board shall not automatically be stayed pending appeal. A stay must first be requested from the Board. The Board may stay the order or any part of it. If the Board denies a stay, then a stay may be requested from the Supreme Court. The Supreme Court or a single Justice may stay the order or any part of it and may order additional interim relief.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3617. Enforcement.

  1. Orders of the Board issued under this chapter may be enforced by any party or by the Board by filing a petition with the Civil Division of the Superior Court of Washington County or in the Civil Division of the Superior Court in the county in which the action before the Board originated. The petition shall be served on the adverse party as provided for service of process under the Vermont Rules of Civil Procedure. If, after hearing, the Court determines that the Board had jurisdiction over the matter and that a timely appeal was not filed or that an appeal was timely filed and a stay of the Board order or any part of it was not granted or that a Board order was affirmed on appeal in pertinent part by the Supreme Court, the Court shall incorporate the order of the Board as a judgment of the Court. There is no appeal from that judgment except that a judgment reversing a Board decision on jurisdiction may be appealed to the Supreme Court.
  2. Upon filing of a petition by a party or the Board, the Court may grant such temporary relief, including a restraining order, as it deems proper pending formal hearing.
  3. Orders and decisions of the Board shall apply only to the particular case under appeal, but any number of appeals presenting similar issues may be consolidated for hearing with the consent of the Board. The Board shall not modify, add to, or detract from a collective bargaining agreement by any order or decision.

    Added 2013, No. 187 (Adj. Sess.), § 2, eff. June 5, 2014.

§ 3618. Automatic membership dues deduction.

Early care and education providers who are members of the labor organization shall have the right to automatic membership dues deductions. Upon receipt of a signed authorization to commence automatic membership dues deductions from an early care and education provider, the State shall, as soon as practicable and in any event, not later than 30 calendar days after receiving the authorization, commence withholding from the subsidies paid to the early care and education provider the amount of membership dues certified by the labor organization. The State shall transmit the amount withheld to the labor organization on the same day as the subsidies are paid to the early care and education provider. Nothing in this section shall be construed to require a member of a labor organization to participate in automatic dues deduction.

Added 2019, No. 180 (Adj. Sess.), § 9, eff. Jan. 1, 2021.

§ 3619. Annual list of early care and education providers in bargaining unit.

  1. Annually, or on a more frequent basis if mutually agreed to by the State and the exclusive representative, the State shall provide the exclusive representative with a list of all providers in that bargaining unit.
  2. The list shall include, as appropriate, each early care and education provider's name, work location, job classification, and contact information. As used in this section, "contact information" includes a provider's home address, personal e-mail address, and home and personal cellular telephone numbers to the extent that the State is in possession of such information.
  3. To the extent possible, the list shall be in alphabetical order by last name and provided in electronic format.
  4. The list shall be kept confidential by the State and the exclusive representative and shall be exempt from copying and inspection under the Public Records Act.

    Added 2019, No. 180 (Adj. Sess.), § 19, eff. Jan. 1, 2021.

CHAPTER 37. PARENT-CHILD CENTER PROGRAM

Sec.

§ 3701. Parent-child center program; eligibility.

  1. For purposes of this chapter, "parent-child center" means a community-based organization established for the purpose of providing prevention and early intervention services such as parenting education, support, training, referral, and related services to prospective parents and families with young children including those whose children are medically, socially, or educationally at risk.
  2. The Secretary of Human Services shall:
    1. upon applications made annually, award grants to eligible parent-child centers; and
    2. establish, by rule, a formula for determining the amount of grants awarded under this chapter and minimum eligibility standards for such awards.
  3. In order to be eligible for a grant under this chapter, a parent-child center shall:
    1. Receive some funding from one or more private, local, or federal source.  Contributions in kind, whether material, commodities, transportation, or office space, may be used to satisfy the contribution requirement of this subdivision.
    2. Qualify for tax exempt status under the provisions of Section 501(c) of the Internal Revenue Code.
    3. Have parent representation on its board of directors.
    4. Represent a designated geographic catchment area.
  4. A parent-child center funded under this chapter shall:
    1. provide leadership in the coordination of services for families with other community service providers;
    2. provide such financial or programmatic information as may be necessary to enable the Secretary of Human Services to evaluate the services provided through grant funds, the effect of such services on consumers of these services, and an accounting of the expenditure of grant funds; and
    3. participate in an annual peer review process conducted by the parent-child center network and the Agency of Human Services.

      Added 1989, No. 269 (Adj. Sess.), § 2; amended 2021, No. 20 , § 326.

History

Reference in text. Section 501 of the Internal Review Code, referred to in subdiv. (c)(2), is codified as 26 U.S.C. § 501.

Codification. This section was originally enacted as 33 V.S.A. § 3727 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2021. Subdivs. (b)(1), (d)(2): Inserted "and" at the end of the subdivisions.

§ 3702. Repealed. 1995, No. 188, § 4.

History

Former § 3702. Former § 3702, relating to parent-child center advisory committee, was derived from 1989, No. 269 (Adj. Sess.), § 2.

§ 3703. Repealed. 2013, No. 142 (Adj. Sess.), § 101.

History

Former § 3703. Former § 3703, relating to reports on the status of parent-child center programs, was derived from 1989, No. 269 (Adj. Sess.), § 2.

CHAPTER 39. ENFORCEMENT OF SUPPORT

Sec.

§ 3901. Definitions.

As used in this chapter:

  1. "Order of support" means any judgment or order for the support of dependent children issued by any court of the State of Vermont or another state or an order under an administrative proceeding of another state, including an order in a final decree of divorce.
  2. "Custodial parent" means any person with whom a dependent child actually resides, whether or not the parent is receiving public assistance benefits under chapter 11 of this title, or the Commissioner for Children and Families if the dependent child is under the care and control of that Department.
  3. "Department" means the Vermont Department for Children and Families.
  4. "Dependent child" means any child receiving assistance under chapter 11 of this title or any minor child for whose benefit the Office of Child Support has been authorized and requested to collect support.
  5. "Court" means the Family Division of the Superior Court.
  6. "Public assistance" means money payments furnished to or on behalf of dependent children by the Department.
  7. "Responsible parent" means the natural or adoptive parent or stepparent, to the extent the stepparent owes a duty of support under 15 V.S.A. § 296 , of a dependent child.

    Added 1977, No. 212 (Adj. Sess.), § 2; amended 1985, No. 63 , § 16; 1989, No. 221 (Adj. Sess.), § 16, eff. Oct. 1, 1990; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 114; 2009, No. 154 (Adj. Sess.), § 238.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 33 V.S.A. § 2711 by 1989, No. 221 (Adj. Sess.), § 16, was incorporated in the text of this section.

Amendments--2009 (Adj. Sess.) Substituted "family division of the superior court" for "family court" in subdiv. (5).

Amendments--2005 (Adj. Sess.). Subdiv. (3): Substituted "for children and families" for "of prevention, assistance, transition, and health access" following "department".

Amendments--1999 (Adj. Sess.). Subdiv. (3): Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare".

Amendments--1989 (Adj. Sess.). Deleted former subdiv. (1), redesignate former subdiv. (2) as subdiv. (1), inserted "of the state of Vermont or another state" following "by any court" and deleted "the state of Vermont or" following "proceeding of" in that subdivision, redesignated former subdivs. (3) and (4) as subdivs. (2) and (3), respectively, redesignated former subdiv. (5) as subdiv. (4) and substituted "office of child support" for "department" following "benefit the" in that subdivision, added a new subdiv. (5), deleted former subdivs. (6)-(9) and redesignated former subdivs. (10) and (11) as subdivs. (6) and (7), respectively.

Amendments--1985. Section amended generally.

Prior law. 33 V.S.A. § 2711.

§ 3902. Assignment of support rights by public assistance recipients; proceedings to establish support obligation.

  1. As a condition of eligibility for public assistance, each applicant or recipient shall assign to the Department any right to support from a responsible parent that has accrued at the time of the assignment and that the applicant may have in the applicant's own behalf or on behalf of any other family member for whom the applicant is applying or receiving assistance.
  2. An assignment in effect under this section shall be subject to the provisions of section 4106 of this title.
  3. Whenever a support obligation is in effect against a responsible parent for the benefit of a dependent child or a custodial parent, payments required under the support obligation shall be sent to the Office of Child Support upon notice to the responsible parent, without further order of the court. When an assignment is in effect pursuant to subsection (a) of this section, any amounts accrued under the support obligation as of the date of assignment, and any amount accruing while the assignment is in effect, shall be owing to and payable to the Department for Children and Families without further order of the court.
  4. An order of the court shall be effective on behalf of the assignee while any assignment is in effect, and on behalf of the dependent child and the custodial parent at all other times.  The Office of Child Support shall, unless otherwise requested by the parent, act as agent for the parent and child to collect any amounts due from the responsible parent pursuant to the order after the assignment terminates and may, if required by the Social Security Act, deduct any costs incurred in collection.
  5. If a support order has been entered and the legal custodian and obligee relinquishes physical responsibility of the child to a caretaker without modifying the physical rights and responsibilities order, the Office of Child Support may change the payee of support upon the caretaker's receipt of Reach Up family assistance from the Department for Children and Families. The obligor's obligation under the support order to pay child support and medical support continues but shall be payable to the Office of Child Support upon the caretaker's receipt of Reach Up family assistance and shall continue so long as the assignment is in effect. The Office of Child Support shall notify the obligor and obligee under the support order, by first-class mail at last known address, of the change of payee.

    Added 1977, No. 212 (Adj. Sess.), § 2; amended 1985, No. 63 § 17; 1989, No. 221 (Adj. Sess.), § 17, eff. Oct. 1, 1990; 1999, No. 147 (Adj. Sess.), § 4; 2003, No. 159 (Adj. Sess.), § 10; 2005, No. 174 (Adj. Sess.), § 115; 2007, No. 185 (Adj. Sess.), § 8, eff. Jan. 1, 2009; 2021, No. 20 , § 327.

History

Reference in text. The Social Security Act, referred to in subsec. (d), is codified as 42 U.S.C. § 301 et seq. Title XVI.

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former V.S.A. § 2715 by 1989, No. 221 (Adj. Sess.), § 17, was incorporated in the text of this section.

2014 In subsec. (e), substituted "Reach Up family assistance" for "RUFA".

Revision note - In subsec. (b), substituted "section 4106 of this title" for "section 3755 of Title 15" to correct an error in the reference.

Amendments--2021. Subsec. (c): Substituted "under the support obligation" for "thereunder" in the first sentence.

Amendments--2007 (Adj. Sess.). Deleted former subsec. (e) and redesignated former subsec. (f) as present subsec. (e).

Amendments--2005 (Adj. Sess.). Subsecs. (c), (f): Substituted "for children and families" for "of prevention, assistance, transition, and health access" following "department".

Amendments--2003 (Adj. Sess.). Subsec. (f): Added.

Amendments--1999 (Adj. Sess.). Subsec. (c): Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare".

Amendments--1989 (Adj. Sess.). Rewrote subsec. (b), substituted "office of child support" for "department of social welfare" in the first sentence and "court" for "issuing authority" at the end of that sentence and at the end of the second sentence of subsec. (c), deleted former subsecs. (d) and (e), redesignated former subsec. (f) as subsec. (d) and rewrote that subsection, deleted former subsec. (g), redesignated former subsec. (h) and subsec. (e) and substituted "the parent's" for "his" preceding "own behalf" and deleted "of the court or the board" following "support order" in the first sentence of that subsection.

Amendments--1985. Subsec. (a): Substituted "the applicant's" for "his" preceding "own".

Subsec. (b): Substituted "or the department of social welfare has been authorized and requested to collect support on behalf of a dependent child, the custodial parent" for "the recipient" following "section" and inserted "or her" preceding attorney".

Subsec. (c): Amended generally.

Subdiv. (d)(1): Inserted "or her" preceding "own".

Subsec. (f): Rewrote the second sentence.

Subsec. (g): Substituted "custodial parent" for "recipient" following "department, the" in the first sentence.

Prior law. 33 V.S.A. § 2715.

ANNOTATIONS

1. Terms of agreement.

Assignment agreement entered into by mother which assigned her right to child support, including past due support, in exchange for Aid to Needy Families with Children benefits, may have assigned any support rights accruing under an existing child support order, but the language was neither clear enough nor specific enough to effect an assignment of mother's rights under the Family Court's separate judgment requiring payment of arrears by father. Desrochers v. Desrochers, 173 Vt. 312, 795 A.2d 1171 (2001).

§ 3902a. Repealed. 1989, No. 221 (Adj. Sess.), § 21(a)(2), eff. Oct. 1, 1990.

History

Former § 3902a. Former § 3902a, relating to notice of support obligation and/or debt, was derived from 1977, No. 212 (Adj. Sess.), § 2 and amended by 1985, No. 63 , § 18.

Prior law. 33 V.S.A. § 2716.

§ 3903. Child support debt.

  1. Except as otherwise provided in this section, any payment of Reach Up financial assistance made to or for the benefit of a dependent child creates a debt due and owing to the Department for Children and Families by any responsible parent in an amount equal to the amount of Reach Up financial assistance paid.
  2. Collection of child support debts shall be made as provided by this section and section 3902 of this title and by 15 V.S.A. chapter 11, subchapter 7. Regardless of the amount of Reach Up financial assistance paid, the court may limit the child support debt, taking into consideration the criteria of 15 V.S.A. § 659 . The Department for Children and Families and the responsible parent may limit the child support debt by stipulation, which shall be enforceable on its terms unless it is modified.

    Added 1979, No. 114 (Adj. Sess.); amended 1985, No. 63 , § 19; 1989, No. 221 (Adj. Sess.), § 18, eff. Oct. 1, 1990; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 116; 2007, No. 185 (Adj. Sess.), § 9, eff. Jan. 1, 2009.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 33 V.S.A. § 2717 by 1989, No. 221 (Adj. Sess.), § 18, was incorporated in the text of this section.

Revision note. Subsection designation at beginning of section deleted to conform section to V.S.A. style.

Substituted "this section and section 3902 of this title" for "this subchapter and subchapter three of this chapter" in subdiv. (2) in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2007 (Adj. Sess.). Designated the existing provisions of the first paragraph as subsec. (a), deleted former subdiv. (1), and redesignated former subdiv. (2) as subsec. (b).

Amendments--2005 (Adj. Sess.). Introductory paragraph: Substituted "Reach Up financial assistance" for "aid to needy families with dependent children (ANFC)" preceding "made to"; "for children and families" for "of prevention, assistance, transition, and health access" following "department" and "Reach Up financial assistance" for "ANFC" preceding "paid".

Subdiv. (2): Substituted "Reach Up financial assistance" for "ANFC" preceding "paid" and "for children and families" for "of prevention, assistance, transition, and health access" following "department".

Amendments--1999 (Adj. Sess.). Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare" in the introductory paragraph and subsec. (b).

Amendments--1989 (Adj. Sess.). Subdiv. (1): Substituted "the" for "said" preceding "responsible" in the second sentence.

Subdiv. (2): Substituted "court" for "issuing authority" preceding "may limit" and "section 659 of Title 15" for "3 V.S.A. § 3092(b)" in the second sentence and deleted "according to § 2725(d) of this title" at the end of the third sentence.

Amendments--1985. Subdiv. (2): Inserted "and by subchapter 7 of chapter 11 of Title 15" following "this chapter" at the end of the first sentence and substituted "issuing authority" for "court or hearing board" preceding "may limit" in the second sentence.

Prior law. 33 V.S.A. § 2717.

ANNOTATIONS

1. Applicability .

This section does not give the Family Court jurisdiction to order repayment of public assistance benefits paid to an individual by another state because its terms limit the right to recoupment to Vermont's Department of Prevention, Assistance, Transition, and Health Access; thus, where the State of Vermont did not pay out any of the benefits for which the Vermont Office of Child Support (OCS) sought recovery, and OCS did not receive an assignment of rights from mother to seek child support from father, the statute could not support the court's jurisdiction over OCS's claim because the claim fell outside its plain language. Office of Child Support ex rel. Melissa Lewis v. Lewis, 178 Vt. 204, 882 A.2d 1128 (December 23, 2004).

§§ 3903a Repealed. 1989, No. 221 (Adj. Sess.), § 21(a)(3), eff. Oct. 1, 1990.

History

Former § 3903a. Former § 3903a, relating to assertion of liens for arrearages in support payments, was derived from 1977, No. 212 (Adj. Sess.), § 2.

§ 3903b. Repealed. 1989, No. 221 (Adj. Sess.), § 21(a)(4), eff. Oct. 1, 1990.

History

Former § 3903b. Former § 3903b, relating to exemption of property from liens, was derived from 1977, No. 212 (Adj. Sess.), § 2 and amended by 1985, No. 63 , § 20.

§ 3903c. Repealed. 1989, No. 221 (Adj. Sess.), § 21(a)(5), eff. Oct. 1, 1990.

History

Former § 3903. Former § 3903c, relating to request for release of excess property value from lien, was derived from 1977, No. 212 (Adj. Sess.), § 2.

§ 3904. Distribution of proceeds.

Any money received by the Department from, or on behalf of a responsible parent, shall be distributed and credited as required by Title IV of the Social Security Act. On request of a responsible parent, the Department shall render an accounting of how payments have been credited.

Added 1977, No. 212 (Adj. Sess.), § 2; amended 1985, No. 63 , § 21.

History

Reference in text. Title IV of Social Security Act, referred to in this section, is codified as 42 U.S.C. § 601 et seq.

Amendments--1985. Rewrote the first sentence.

Prior law. 33 V.S.A. § 2740.

CHAPTER 41. OFFICE OF CHILD SUPPORT

Sec.

§ 4101. Office of Child Support; designation as IV-D agency; legislative purpose.

  1. The Office of Child Support in the Agency of Human Services shall be designated the IV-D agency for purposes of Title IV-D of the federal Social Security Act.
  2. The paramount interest of the State of Vermont is the welfare of its children. The establishment and enforcement of family support obligations is therefore an important function in this regard. The Office of Child Support in carrying out its responsibility shall be guided by the best interests of the child, but not the economic interests exclusively in an action for child support.

    Added 1989, No. 221 (Adj. Sess.), § 13; amended 1993, No. 105 , § 7.

History

Reference in text. Title IV-D of the federal Social Security Act, referred to in this section, is codified as 42 U.S.C. § 651 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3751 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--1993. Added "legislative purpose" following "agency " in the section heading, designated the existing provisions of the section as subsec. (a) and added subsec. (b).

Cross References

Cross references. General provisions, Uniform Interstate Family Support Act, see 15B V.S.A. chapter 11.

ANNOTATIONS

Analysis

1. Construction.

This section's general statement of purpose did not confer power on Office of Child Support to independently seek court action apart from support obligee whom it was assisting, in absence of her assignment of support. Cantin v. Young, 170 Vt. 563, 742 A.2d 1246 (mem.) (1999).

2. Purpose.

The purpose of Office of Child Support (OCS) does not change depending upon whether or not the petitioner is receiving public assistance or whether the petitioner has assigned his or her rights to the agency; in neither case does the service provided by OCS flow to an individual, but instead it flows to the welfare of the State, its children, and its fisc. Powers v. Office of Child Support, 173 Vt. 390, 795 A.2d 1259 (2002).

§ 4102. Responsibilities.

  1. The Office of Child Support shall be accountable and responsible for the operation of the federal IV-D program and shall be responsible for formulating the State Child Support Enforcement Plan as required under Title IV-D of the federal Social Security Act.
  2. The Office of Child Support shall be responsible for the administration of the Registry established in section 4103 of this title.
  3. Upon application of the parent of a minor child, the Office of Child Support shall provide the following services:
    1. location of absent parents;
    2. financial assessment to determine a parent's ability to provide support;
    3. determination of a parent's employment status;
    4. enforcement of child support orders;
    5. establishment of parentage; and
    6. any other services required to be provided under Title IV-D.
  4. The Office of Child Support shall provide appropriate instruction and supervision of its employees concerning legal ethics, family law, court procedure, child abuse, public benefit programs, and the dynamics of parent-child relationships.
  5. No employees may be assigned to a case before the Family Division of the Superior Court without the skill and professional qualifications commensurate with the complexity of the case.

    Added 1989, No. 221 (Adj. Sess.), § 13; 1993, No. 105 , § 8; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Reference in text. Title IV-D of the federal Social Security Act, referred to in subsec. (a), is codified as 42 U.S.C. § 651 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3752 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2009 (Adj. Sess.) Substituted "family division of the superior court" for "family court" in subsec. (e)

Amendments--1993. Subsec. (d): Added.

Subsec. (e): Added.

Cross References

Cross references. Exemption from consumer consent requirement of fair credit reporting standards, see 9 V.S.A. § 2480g.

ANNOTATIONS

1. Construction.

Office of Child Support did not have power to independently seek court action, apart from support obligee whom it was assisting, in absence of her assignment of support. Cantin v. Young, 170 Vt. 563, 742 A.2d 1246 (mem.) (1999).

§ 4103. Registry.

  1. The Office of Child Support shall establish a registry for the following purposes:
    1. Processing child support collections and disbursements.
    2. Maintaining records necessary for the receipt and disbursement of child support, including information on support orders and support arrearages, with the date and amount due and the date and amount paid by the obligor and the date and amount disbursed; identifying information about both parents, including the name, address, Social Security number, and employment information; names and dates of birth of children.
    3. Providing a record of their support collections and disbursements to obligors and obligees.
    4. Notifying employers in cases involving wage withholding of the amounts to be withheld for support, the amount of income exempt from withholding, and the dates for beginning, reducing, increasing, and terminating withholding pursuant to the terms of the support order. The Office shall accommodate employer withholdings based upon the employer's payroll period and shall provide return envelopes to the employer for sending the payment to the Office.
    5. Maintaining and providing any other information as required by law.
  2. All orders for child support subject to wage withholding shall require that payment be made through the Registry and shall be deemed IV-D cases. All orders for child support not subject to wage withholding made or modified on or after July 1, 1990 shall require that payment be made through the Registry as a IV-D case unless the parties have agreed that the obligor will pay the obligee directly.
  3. In the case where neither parent requests services under Title IV-D of the Social Security Act or where the case is not a IV-D case by operation of law, the Office of Child Support services may recover the administrative costs of processing payments through the Child Support Registry, not to exceed an administrative fee of $5.00 per month. The Family Division of the Superior Court shall increase the monthly support obligation to take the administrative cost into account unless the noncustodial parent is below the federal poverty level. The Office of Child Support services shall deduct the cost from the first payment received each month. Fees collected under this subsection shall be credited to a special fund and shall be available to the Office of Child Support services to offset the costs of its administrative services.
  4. [Repealed.]

    Added 1989, No. 221 (Adj. Sess.), § 13; amended 1995, No. 47 , § 21; 1995, No. 186 (Adj. Sess.), § 15, eff. May 22, 1996; 1997, No. 11 , § 2, eff. Jan. 1, 1998; 1997, No. 155 (Adj. Sess.), § 25; 2003, No. 159 (Adj. Sess.), § 11, eff. Sept. 1, 2004; 2009, No. 154 (Adj. Sess.), § 238; 2011, No. 32 , § 3; 2017, No. 18 , § 1.

History

Reference in text. Title IV-D of the Social Security Act, referred to in subsec. (c), is codified as 42 U.S.C. § 651 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3753 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2017. Subsec. (d): Repealed.

Amendments--2011. Subsec. (b): Inserted "and shall be deemed IV-D cases" at the end of the first sentence and "as a IV-D case" following "registry" in the second sentence.

Subsec. (c): Inserted "or where the case is not a IV-D case by operation of law" following "Act" in the first sentence.

Amendments--2009 (Adj. Sess.) Substituted "family division of the superior court" for "family court" in subsec. (c).

Amendments--2003 (Adj. Sess.). Subdiv. (a)(4): Added the second sentence.

Amendments--1997 (Adj. Sess.). Subsec. (c): Added the last sentence.

Amendments--1997 Subsec. (d): Added.

Amendments--1995 (Adj. Sess.) Subsec. (c): In the second sentence, substituted "shall" for "may", inserted "unless the noncustodial parent" following "cost into account" and added "below the federal poverty level" at the end of the sentence.

Amendments--1995 Subsec. (c): Added.

§ 4104. Support overpayment.

  1. If the Office of Child Support determines that it has received an overpayment from an employer within 30 days of the overpayment, the Office shall return the overpayment to the obligor within one working day.
  2. In cases where the Office of Child Support determines that it has received an overpayment after 30 days, it shall permit the obligor to reduce future support payments to offset the overpayment.
  3. The Office of Child Support may recover an overpayment from the obligee by deducting from future support payments if the obligee has failed to return the excess to the Registry as required under 15 V.S.A. § 786 .
  4. In no case shall application of this section reduce the amount of current support paid to the obligee by more than 10 percent.

    Added 1989, No. 221 (Adj. Sess.), § 13.

History

Codification. This section was originally enacted as 33 V.S.A. § 3754 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

§ 4105. Access to information; disclosure and confidentiality.

  1. The Office of Child Support may subpoena from any person or business any information needed to establish, modify, or enforce a child support or parental rights and responsibilities order.  The subpoena shall be signed by the Director of the Office of Child Support or a designee of the Office of Child Support. It shall be attached to an affidavit that certifies that the person about whom information is sought is the parent of a child based on either a court order or a statutory presumption, that the Office of Child Support has been requested to provide financial information under section 4102 of this title, and that the information sought is needed to establish, modify, or enforce a child support or parental rights and responsibilities order or to determine if such action is necessary.
  2. The Office of Child Support may request any information needed to establish, modify, or enforce a child support or parental rights and responsibilities order or to locate any person alleged to be a parent owing a duty of support from the records of all governmental officials, departments, and other governmental agencies of this State without a subpoena. The officials and employees of the departments and other agencies shall provide all such information requested. Only information directly bearing on the identity and whereabouts of parents or alleged parents or their assets or income may be requested, used, or transmitted by the Office of Child Support under this section. Any information provided by the Department of Taxes shall include information about assets held by or income attributable to the parent jointly with any other person.
  3. Except as otherwise provided in this chapter, 15 V.S.A. chapter 11, and Title 15B, information furnished the Office of Child Support shall be made available only to the person requesting services or to the person's attorney, the person to whom the information relates, and the Family Division of the Superior Court.  Any other use of the information shall be prohibited.  A person who violates this subsection shall be fined not more than $500.00.  Any individual aggrieved by a violation of this section may bring an action for civil damages, including punitive damages, equitable relief, including restraint of prohibited acts, restitution of wages or other benefits, reinstatement, costs, reasonable attorney's fees, and other appropriate relief.
  4. Any person objecting to a subpoena may request an administrative review of its issuance by the Office of Child Support or may request that the subpoena be modified or vacated pursuant to 3 V.S.A. § 809b .  A request for review under this subsection shall be brought in the Family Division of the Superior Court. Failure to comply with a subpoena may result in enforcement pursuant to 3 V.S.A. § 809a .
  5. A public utility company as defined in 30 V.S.A. § 201(1) , or a cable television company as defined in 30 V.S.A. § 501 , when requested by the Office of Child Support, shall provide the address as it appears in its customer records of a parent or person named in the request.

    Added 1989, No. 221 (Adj. Sess.), § 13; amended 1997, No. 63 , § 24, eff. Sept. 1, 1997; 1997, No. 156 (Adj. Sess.), § 26, eff. April 29, 1998; 2009, No. 154 (Adj. Sess.), § 238; 2013, No. 131 (Adj. Sess.), § 67.

History

Codification. This section was originally enacted as 33 V.S.A. § 3755 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

2021. In subsec. (e), substituted "30 V.S.A. § 201(1)" for "30 V.S.A. § 201(a)" to correct a subsequently amended cross-reference.

Amendments--2013 (Adj. Sess.). Subsec. (e): Added.

Amendments--2009 (Adj. Sess.). Substituted "family division of the superior court" for "family court" in subsecs. (c) and (d).

Amendments--1997 (Adj. Sess.). Subsec. (b): Deleted "but shall not include information about the sole assets or income attributed solely to a person not the parent" at the end of the last sentence.

Amendments--1997. Section amended generally.

§ 4106. Assignment of rights.

  1. When an assignment of the right to support is in effect pursuant to section 3902 of this title or pursuant to this section, or when payments are being made through the Registry, the custodial parent shall be considered to have appointed the Director of the Office of Child Support as his or her attorney in fact to perform the specific act of endorsing over to the Registry all drafts, checks, money orders, or other negotiable instruments for support of the child or to transfer any payments received by the Registry to the registering tribunal of another state, as defined in 15B V.S.A. § 101(19), after a written request is received from the obligee or the other state on behalf of the obligee or under an assignment of rights.
  2. When an assignment is in effect, any amounts accrued under a support obligation as of the date of assignment, and any amount accruing while the assignment is in effect, shall be owing to and payable to the Registry without further order of the court.
  3. A person applying for IV-D services who is not receiving welfare assistance may assign support rights to the State, but such an assignment shall not be a condition of eligibility for IV-D services.
  4. Persons who have assigned their support rights to the State shall be informed of actions that will be taken on their behalf and shall be entitled to information concerning the progress or results of any such action. Thirty days prior to the initiation of any court proceeding, the Office of Child Support shall give the assignor notice and provide the assignor the opportunity to timely raise claims, through the waiver process, that such actions would not be in the best interests of the children.
  5. If arrearages accrue after support rights have been assigned and the obligor and obligee subsequently reunite, the Office of Child Support may not take any action to collect the support arrearages, unless the reunited family has a gross income equal to or greater than 225 percent of poverty, as defined by the U.S. Department of Health and Human Services.
  6. When an assignment is in effect, the State shall be guided by the best interests of the child for whose benefit the action is taken.
    1. The amount of child support indicated by the guidelines shall be presumed to be in the child's best interests, but other relevant information that is readily available, including information provided by the parents, shall be considered together with the factors set out in 15 V.S.A. § 659 .
    2. If, after reasonable inquiry into the circumstances of the family, it is determined by the Office of Child Support that an action would not be in the best interests of the affected child, a support action should not be undertaken.

      Added 1989, No. 221 (Adj. Sess.), § 13; amended 1993, No. 105 , § 9; 1997, No. 63 , § 25, eff. Sept. 1, 1997; 2021, No. 20 , § 328.

History

Reference in text. The references to "IV-D services" in subsec. (c) refer to services under Title IV-D of the federal Social Security Act, which is codified as 42 U.S.C. § 651 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3756 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Editor's note. Subsec. (a) cross-references 15B V.S.A. § 101(19), which is repealed. The definition of "registering tribunal” is codified at 15B V.S.A. § 1102.

Amendments--2021. Subdiv. (f)(1): Substituted "interests" for "interest" and "that" for "which".

Amendments--1997 Subsec. (a): Amended generally.

Amendments--1993. Subsec. (d): Amended generally.

Subsec. (f): Amended generally.

ANNOTATIONS

1. Construction .

Office of Child Support did not have power to independently seek court action, apart from support obligee whom it was assisting, in absence of her assignment of support. Cantin v. Young, 170 Vt. 563, 742 A.2d 1246 (mem.) (1999).

Enforcement actions by Office of Child Support Services (OCS) were broadly discretionary and its duties uniquely governmental, and there was no private analog in common law relating to collection of debts by private collection agencies; accordingly, action against OCS alleging negligence in its enforcement of a child support order was barred by doctrine of sovereign immunity. Noble v. Office of Child Support, 168 Vt. 349, 721 A.2d 121 (1998).

§ 4107. Office of Child Support; access to motor vehicle information; criminal record information.

The Office of Child Support, for purposes of establishing and enforcing support and parental rights and responsibilities obligations, is designated as a law enforcement agency for the sole purpose of requesting and obtaining access to motor vehicle information and other information needed to identify or locate a person, including access to information maintained by the National Criminal Information Center. Such information shall only be used for collection of child support and is subject to the restrictions of section 4105(c) of this title.

Added 1995, No. 59 , § 12; amended 1997, No. 63 , § 26, eff. Sept. 1, 1997.

History

Amendments--1997 Section amended generally.

§ 4108. Grievance procedure.

  1. The Office of Child Support shall adopt rules in accordance with the procedures set forth in 3 V.S.A. chapter 25, the Administrative Procedure Act, to establish and implement a grievance procedure to contest decisions of the Office of Child Support.
  2. The Office of Child Support shall make widely available to the public information about its grievance procedure, including grievance forms, pamphlets explaining the procedure, and explanations of grievance rights.
  3. Upon issuing a wage withholding order, the Office of Child Support shall notify the obligor pursuant to 15 V.S.A. § 788 of the amount of the past due child support, the consequences of failing to meet a court-ordered child support obligation, and the procedure for contesting the Office's action under this section.
  4. All final decisions of the Office of Child Support are appealable de novo to the magistrate in the Family Division of the Superior Court.
  5. If the obligor contests the withholding within 21 days of the notice and is found not to be in arrears by more than one-twelfth of the annual support obligation on the date the notice is issued, the Office, within two business days, shall notify the employer to cease withholding. In addition, the Office shall pay to the obligor three times the amount erroneously withheld.

    Added 1993, No. 105 , § 10; amended 1997, No. 63 , § 27, eff. Sept. 1, 1997; 2009, No. 146 (Adj. Sess.), § C17; 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Subsec. (c): Act No. 146 substituted "15 V.S.A. § 788" for "section 788 of Title 15".

Subsec. (d): Act No. 154 substituted "magistrate in the family division of the superior court" for "family court magistrate".

Subsec. (e): Act No. 146 substituted "21 days" for "20 days".

Amendments--1997 Subsecs. (c)-(e): Added.

ANNOTATIONS

Cited. Noble v. Office of Child Support, 168 Vt. 349, 721 A.2d 121 (1998).

§ 4109. Office of Child Support; use of federal parent locator service.

The Office of Child Support may use the services of the Federal Parent Locator Service.

Added 1993, No. 228 (Adj. Sess.), § 14.

§ 4110. Employer obligations.

  1. Where a parent is required by a court or administrative order to provide health coverage for a child, and the parent is eligible for dependent health coverage, which is available through an employer doing business in this State, the employer is required:
    1. To enroll under dependent coverage any child who is otherwise eligible for coverage without regard to any enrollment season restrictions or any seasonal restrictions on switching from one plan to another upon application of either parent, by the State agency administering the Medicaid program, by any State agency administering health benefits or a health benefit plan for which Medicaid is a source of funding, or the Child Support Enforcement Program.
    2. Not to disenroll or eliminate coverage of any such child unless the employer is provided satisfactory written evidence that:
      1. the court order is no longer in effect;
      2. the child is or will be enrolled in comparable coverage that will take effect no later than the effective date of disenrollment;
      3. the employer has eliminated dependent health coverage for all of its employees if allowed by law.
    3. To withhold from the employee's compensation the employee's share (if any) of premiums for health coverage and to pay this amount to the insurer. Any employer failing to withhold as required under this subdivision shall be liable for any premiums not withheld and paid over to the insurer.
    4. To send written notice to the insurer within 10 days of receipt of a notice under 15 V.S.A. § 663(d) . The employer shall be liable for any child medical expenses that would have been covered under the employer's health plan had notice been given to the insurer according to this section.
    5. Notice to the employer under 15 V.S.A. § 663(d) , if given by first-class mail, postage prepaid, or by any other method showing actual receipt, shall be presumptive evidence of its receipt by the employer to whom it is addressed. Any period of time that is determined under this section by the giving of such notice shall commence to run from the date of mailing if the notice is mailed, or the date of actual receipt if another method of transmitting the notice is used.
    6. For purposes of this section, "dependent coverage" shall have the same meaning as in 8 V.S.A. § 4100b(a)(3) .
  2. Effective October 1, 1998, all employers in the State of Vermont shall report all new hires to the Department of Labor, and reported information will be shared with the Office of Child Support for the purpose of expediting compliance with court ordered wage withholding orders, and location of payers or parents with an obligation to provide parental contact. The Department of Labor may use the information to assist with the administration of the Unemployment Insurance Program.
    1. Employers shall report new hires within 10 calendar days of the first date of employment for a new employee.
    2. Employers shall report the following data elements to the Department of Labor: newly hired employee's name, address, first date of employment, Social Security number, and the employer's name, address, and federal identification number.
    3. Employers shall report the required new hire data elements electronically, when practicable, or on a form supplied or approved by the Department of Labor. Forms may be transmitted by fax transmission, first-class mail, magnetic tape, electronically, or inputting data elements via the telephone.
    4. If the failure to report is the result of collusion between employer and employee, the employer shall be liable to the obligee in the amount of the wages required to be withheld but not more than $500.00.
  3. As used in this section:
    1. "Employee":
      1. means an individual who is an employee within the meaning of chapter 24 of the Internal Revenue Code of 1986; and
      2. does not include an employee of a federal or State agency performing intelligence or counterintelligence functions, if the head of such agency has determined that reporting pursuant to this section with respect to the employee could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission.
    2. "Employer" has the meaning given such term in Section 3401(d) of the Internal Revenue Code of 1986 and includes any governmental entity and any labor organization.
    3. "First date of employment" is the first day services are performed for compensation as a new hire.
    4. "New hire" means an employee who:
      1. has not previously been employed by the employer; or
      2. was previously employed by the employer but has been separated from that employment for at least 60 consecutive days.

        Added 1993, No. 231 (Adj. Sess.), § 6; amended 1995, No. 43 , §§ 3, 4, eff. April 17, 1995; 1997, No. 63 , § 28, eff. Sept. 1, 1997; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2009, No. 146 (Adj. Sess.), § C18; 2011, No. 162 (Adj. Sess.), § E.401.10.

History

Reference in text. Chapter 24 of the Internal Revenue Code of 1986, referred to in subdiv. (c)(1)(A), is codified as 26 U.S.C. § 3401 et seq.

Editor's note. This section, which was originally enacted as section 4109 of this title, was redesignated to avoid conflict with section 4109 of this title as previously added by 1993, No. 228 (Adj. Sess.), § 14.

Amendments--2011 (Adj. Sess.). Subsec. (c): Amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (b): Added the last sentence in the introductory paragraph, substituted "10 calendar days" for "20 days" and "the first date of employment for" for "hiring" in subdiv. (1) and rewrote subdivs. (2) and (3).

Subsec. (c): Added new subdiv. (3) and redesignated former subdiv. (3) as subdiv. (4).

Amendments--2005 (Adj. Sess.) Substituted "department of labor" for "department of employment and training" in subsec. (b), and subdivs. (b)(2) and (c)(3).

Amendments--1997 Designated the existing provisions of the section as subsec. (a) and added subsecs. (b) and (c).

Amendments--1995 Inserted "for a child, and the parent is eligible for dependent health coverage" preceding "which is" in the introductory paragraph, substituted "dependent" for "family" following "under" and inserted "or any seasonal restrictions on switching from one plan to another" preceding "upon application" in subdiv. (1), and substituted "dependent" for "family" following "eliminated" and added "if allowed by law" following "employees" in subdiv. (2)(C), and added subdiv. (6).

§ 4111. Access to financial records of deposit accounts of individuals who owe overdue child support.

  1. As used in this section:
    1. "Depositor" means an owner of an account in a financial institution and includes a "share account holder" of a credit union.
    2. "Financial institution" means a trust company, savings bank, industrial bank, commercial bank, savings and loan association, or credit union organized under the laws of this State or authorized to do business in this State.
    3. "Match" means an automated comparison by name, Social Security number, and, if available, date of birth of a list of obligors provided to a financial institution by the Office and a list of depositors of a financial institution.
    4. "Obligor" means a person who owes child support.
    5. "Office" means the Office of Child Support.
    6. "Overdue support" means a debt of one-quarter of the annual support obligation or more for maintenance and support of a child or children and the obligor had prior notice of the debt and a prior opportunity to contest the amount owed. "Overdue support" includes spousal support or alimony being collected in conjunction with child support.
  2. Upon written request from the Director of the Office of Child Support and provided the institution has the technological capacity to perform a match, a financial institution shall perform a match of obligors who owe overdue child support. The Office shall make its computerized information necessary for a match available in a form that is compatible with the technology used by the financial institution that will perform the search. A financial institution shall not be required to perform a match under this section more often than once every quarter.
  3. After completing a match requested under subsection (b) of this section, a financial institution shall notify the Office of Child Support. The notification shall contain the following information, if available to the financial institution through its matching procedure, for each account identified:
    1. the full name, date of birth, and address of the obligor;
    2. the Social Security number of the obligor;
    3. the obligor's account number; and
    4. the amount of deposits contained in the obligor's account.
  4. A financial institution shall send a match list compiled under this section to the Office at the address designated by the Office.
  5. The financial institution shall not provide notice in any form to a depositor contained in a match list submitted to the Office under subsection (d) of this section. Failure to provide notice to a depositor shall not constitute a violation of the financial institution's duty of good faith to its customers.
  6. A financial institution may charge the Office a fee for services provided under this section provided that the fee shall not exceed the actual costs incurred by the financial institution.
  7. The information provided by the Office to a financial institution under this section shall be confidential and shall be used only for the purpose of carrying out the requirements of this section.

    Added 2013, No. 131 (Adj. Sess.), § 68, eff. May 20, 2014.

History

2013 (Adj. Sess.). Former § 115 of this title was recodified as § 4111 by 2013, No. 131 (Adj. Sess.), § 68.

CHAPTER 43. CHILDREN AND ADOLESCENTS WITH SEVERE EMOTIONAL DISTURBANCE

Sec.

History

Revision note. This chapter was enacted by 1987, No. 264 (Adj. Sess.), § 2, as sections 20-24 of Title 3, but was redesignated as sections 31-35 of Title 3 to avoid conflict with sections 20 and 21 of Title 3 enacted by 1987, Nos. 200 (Adj. Sess.) and 257 (Adj. Sess.).

§ 4301. Definitions.

As used in this chapter:

  1. "Child with a disability" means a child who either is eligible for early essential education or special education under State or federal law, or who is a child or adolescent with a severe emotional disturbance.
  2. "Coordinated service plan" means a written addendum to each service plan developed by an individual agency for a child or adolescent with severe emotional disturbances that shall be developed when the child has needs that require services from more than one agency.  The coordinated services plan shall be designed to meet the needs of the child within his or her family or in an out-of-home placement, and in the school and the community.  The coordinated services plan shall:
    1. be based upon an appropriate assessment of the individual needs of the child;
    2. identify service needs of the child;
    3. identify services that are currently being provided;
    4. identify public or private agencies that currently provide each needed service, and how each needed service is funded;
    5. if any service need is not being met, include an explanation of why the service is not being provided, including lack of funds or the fact that service is not available;
    6. delineate case management responsibilities;
    7. include a reintegration plan when an out-of-home placement is made or recommended; and
    8. be developed with the opportunity for participation from parents, a guardian, or a surrogate parent appointed pursuant to Pub. L. No. 94-142.
  3. "Child or adolescent with a severe emotional disturbance" means a person who:
    1. exhibits a behavioral, emotional, or social impairment that disrupts his or her academic or developmental progress or family or interpersonal relationships;
    2. has impaired functioning that has continued for at least one year or has an impairment of short duration and high severity;
    3. is under 18 years of age, or is under 22 years of age and eligible for special education under State or federal law; and
    4. falls into one or more of the following categories, whether or not he or she is diagnosed with other serious disorders such as developmental disability, severe neurological dysfunction, or sensory impairments:
      1. children and adolescents who exhibit seriously impaired contact with reality and severely impaired social, academic, and self-care functioning whose thinking is frequently confused, whose behavior may be grossly inappropriate and bizarre and whose emotional reactions are frequently inappropriate to the situation;
      2. children and adolescents who are classified as management or conduct disordered because they manifest long-term behavior problems, including developmentally inappropriate inattention, hyperactivity, impulsiveness, aggressiveness, antisocial acts, refusal to accept limits, suicidal behavior, or substance abuse;
      3. children and adolescents who suffer serious discomfort from anxiety, depression, irrational fears, and concerns whose symptoms may be exhibited as serious eating and sleeping disturbances, extreme sadness of suicidal proportion, maladaptive dependence on parents, persistent refusal to attend school, or avoidance of nonfamilial social contact.

        Added 1987, No. 264 (Adj. Sess.), § 2; amended 1989, No. 203 (Adj. Sess.), § 1; 2013, No. 96 (Adj. Sess.), § 213; 2021, No. 20 , § 329.

History

Reference in text. Pub. L. No. 94-142, referred to in subdiv. (2)(H), is cited as the "Education For All Handicapped Children Act of 1975" and is codified as 20 U.S.C. §§ 1232, 1401, 1405, 1411-1420, 1435.

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 3 V.S.A. § 31 by 1989, No. 203 (Adj. Sess.), § 1, was incorporated in the text of this section.

Amendments--2021. Subdiv. (2)(H): Substituted "Pub. L. No." for "P.L.".

Amendments--2013 (Adj. Sess.). Subdiv. (3)(D): Substituted "developmental disability" for "mental retardation" following "disorders such as".

Amendments--1989 (Adj. Sess.). Subdiv. (2): Amended generally.

Prior law. 3 V.S.A. § 31.

§ 4302. State interagency team.

  1. A State interagency team is created and shall consist of eight members:
    1. The Director of the division responsible for special education for the Agency of Education.
    2. The Agency of Education's consultant for children and adolescents with a severe emotional disturbance.
    3. The Director of the division responsible for children's mental health for the Department of Mental Health.
    4. The Chief of the Children, Adolescents, and Family Unit in the Division of Children's Mental Health Services for the Department of Mental Health.
    5. The Deputy Commissioner for the Family Services Division of the Department for Children and Families.
    6. The placement consultant for the Family Services Division of the Department for Children and Families.
    7. A representative of the Secretary of Human Services.
    8. A parent of a child or adolescent with a severe emotional disturbance. The parent shall receive compensation in accordance with the provisions of 32 V.S.A. § 1010 , and the compensation shall be paid for by the Agency of Human Services.
  2. The State interagency team shall have the following powers and duties:
    1. Submit an annual report to the Commissioners of Mental Health and for Children and Families and the Secretary of Education on the status of programs for children and adolescents with a severe emotional disturbance, which shall include a system of care plan. The system of care plan shall identify the characteristics and number of children and adolescents with a severe emotional disturbance in need of services, describe the educational, residential, mental health, or other services needed, describe the programs and resources currently available, recommend a plan to meet the needs of such children and adolescents, and recommend priorities for the continuation or development of programs and resources.
    2. Develop and coordinate the provision of services to children and adolescents with a severe emotional disturbance.
    3. Make recommendations to the local interagency team for resolution of any case of a child or adolescent with a severe emotional disturbance referred by a local interagency team under subsection 4303(f) of this chapter.
    4. Recommend to the Secretaries of Human Services and of Education and the Commissioners of Mental Health and for Children and Families any fiscal, policy, or programmatic change at the local, regional, or State level necessary to enhance the State's system of care for children and adolescents with a severe emotional disturbance and their families.

      Added 1987, No. 264 (Adj. Sess.), § 2; amended 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 174 (Adj. Sess.), § 3; 2013, No. 92 (Adj. Sess.), § 295, eff. Feb. 14, 2014; 2013, No. 131 (Adj. Sess.), § 69, eff. May 20, 2014.

History

2008. In subdiv. (b)(4), substituted "subsection 4303(f)" for "section 4303(f)" to conform reference to V.S.A. style.

Revision note - In subdiv. (b)(4), substituted "section 33(f)" for "subsection 22(f)" in view of the redesignation of former section 22 of Title 3 as section 33 of Title 3 and to conform reference to V.S.A. style.

In subdiv. (b)(4), substituted "section 4303(f) of this chapter" for "section 33(f) of this chapter" in view of the recodification of this chapter by 1989, No. 148 (Adj. Sess.), § 2(b).

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--1995 (Adj. Sess.). Subdiv. (a)(3): Substituted "department of developmental and mental health services" for "department of mental health and mental retardation".

Subdiv. (a)(4): Substituted "department of developmental and mental health services" for "department of mental health and mental retardation".

Subdiv. (b)(1): Substituted "commissioners of developmental and mental health services" for "commissioners of mental health and mental retardation".

Subdiv. (b)(5): Substituted "department of developmental and mental health services" for "department of mental health and mental retardation".

Amendments--1989 (Adj. Sess.). Subdiv. (a)(3): Added "and mental retardation" following "mental health".

Subdiv. (a)(4): Added "and mental retardation" following "mental health".

Subdiv. (b)(1): Inserted "and mental retardation" following "mental health" in the first sentence.

Subdiv. (b)(5): Inserted "and mental retardation" following "mental health".

Prior law. 3 V.S.A. § 32.

§ 4303. Local interagency teams.

  1. There shall be at least one local interagency team for each administrative district established by the Department for Children and Families whose permanent membership shall include:
    1. The person from the designated community mental health agency for that district responsible for coordinating children's services.
    2. The person managing the family services district office of the Department for Children and Families for that district.
    3. A special education administrator from a school district in that district.
    4. A person designated by the Secretary of Human Services.
    5. A parent of a child or adolescent with a severe emotional disturbance. The parent shall receive compensation in accordance with the provisions of 32 V.S.A. § 1010 , and the compensation shall be paid for by the Agency of Human Services.
  2. In addition to the permanent members, the local interagency team reviewing the case of a child or adolescent shall include as ad hoc members the special education administrator of the school district serving the child or adolescent and the parents of the child or adolescent.  The local interagency team may appoint on an ad hoc basis, other persons determined to be necessary for the effectiveness of the team.
  3. The local interagency team shall appoint one of its permanent members to be chair.  If the local interagency team cannot agree on a chair, one will be appointed by the State interagency team.
  4. A referral may be made by a local agency, service provider, or parent concerning a child or adolescent with a severe emotional disturbance when agreement cannot be reached with respect to the provision of appropriate services for the child or adolescent.  When a referral is made, the local interagency team shall:
    1. make recommendations concerning the following matters upon which agreement cannot be reached: assessment of the child, coordinated service planning, and the provision of services for the child or adolescent;
    2. review the coordinated services plan for the child or adolescent and amend the plan if necessary.
  5. The local interagency team may meet at the request of any agency or parent to serve as a forum for consideration of general issues relating to implementation of the provisions of this chapter.
  6. After all attempts have been made without success to resolve any matter considered under subsection (d) or (e) of this section the matter shall be referred to the State interagency team.
  7. The local interagency team annually shall inform all local agencies and service providers for children and adolescents with severe emotional disturbances of the provisions of this chapter and any implementing rules or procedures.

    Added 1987, No. 264 (Adj. Sess.), § 2; amended 1989, No. 203 (Adj. Sess.), §§ 2, 3; 2013, No. 131 (Adj. Sess.), § 70, eff. May 20, 2014.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendments to former 3 V.S.A. § 33 by 1989, No. 203 (Adj. Sess.), § 2, 3, were incorporated in the text of this section.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "Department for Children and Families" for "department of social and rehabilitation services" following "established by the".

Subdiv. (a)(2): Inserted "family services" following "managing the" and substituted "Department for Children and Families" for "department of social and rehabilitation services" following "office of the".

Subdiv. (a)(4): Substituted "Human Services" for "the agency of human services" following "Secretary of".

Subdiv. (a)(5): Substituted "The parent" for "Such parent" at the beginning of the second sentence, "32 V.S.A. § 1010" for "section 1010 of Title 32" following "the provisions of", and "the compensation" for "such compensation" preceding "shall be paid".

Amendments--1989 (Adj. Sess.). Subsec. (d): Amended generally.

Subsec. (g): Substituted "any implementing rules or procedures" for "the rules adopted to implement this chapter" following "chapter and".

Prior law. 3 V.S.A. § 33.

§ 4304. Repealed. 1987, No. 264 (Adj. Sess.), § 17, eff. Jan. 15, 1992.

History

Former § 4304. Former § 4304, relating to creation of advisory board, was derived from 1987, No. 264 (Adj. Sess.), § 2, and amended by 1989, No. 187 (Adj. Sess.), § 5.

§ 4304a. Advisory Board.

  1. An advisory board is created to advise the Secretary of Education and the Commissioners of Mental Health and for Children and Families about children and adolescents with a severe emotional disturbance and their families.
  2. The Advisory Board shall also advise the Secretary and the Commissioners on the development of the system of care plan described in subsection 4305(c) of this title.
  3. The State interagency team shall recommend to the Governor a list of potential Board members. The Governor shall appoint from that list three parents of children or adolescents with a severe emotional disturbance, three advocates from organizations working on behalf of children and adolescents with a severe emotional disturbance, and three professionals in related fields or service organizations.
  4. Members of the Board shall serve for a term of three years, beginning April 1 of the year of appointment or until their successors are appointed. Initially one-third of the members shall be appointed to one-year terms, one-third to two-year terms, and one-third to three-year terms. Thereafter, members shall be appointed for three-year terms.
  5. The Board shall elect a chair from among its members. The Board shall meet annually at the call of the Chair, and other meetings may be called by the Chair at such times and places as the Chair deems necessary.
  6. The members of the Board who are employees of the State shall receive no additional compensation for their services, but actual and necessary expenses shall be allowed State employees and shall be charged to their departments. The members of the Board who are not State employees shall receive compensation as provided in 32 V.S.A. § 1010 , and that compensation shall be paid by the Agency of Human Services.

    Added 1993, No. 203 (Adj. Sess.), § 1; amended 1997, No. 147 (Adj. Sess.), § 138b; 1995, No. 174 (Adj. Sess.), § 3; 2013, No. 131 (Adj. Sess.), § 71, eff. May 20, 2014; 2015, No. 23 , § 59.

History

Amendments--2015. Subsec. (b): Inserted "the Secretary and" preceding "the Commissioners".

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "Secretary of Education and the Commissioners of Mental Health and for Children and Families" for "commissioners of developmental and mental health services, social and rehabilitation services and education" following "advise the".

Amendments--1997 (Adj. Sess.). Subsec. (c): Substituted "three" for "five" wherever it appeared.

Amendments--1995 (Adj. Sess.). Subsec. (a): Substituted "commissioners of developmental and mental health services" for "commissioners of mental health and mental retardation".

§ 4305. Coordinated system of care.

    1. Services provided by or through the Departments of Mental Health and for Children and Families and the Agency of Education to children and adolescents with a severe emotional disturbance shall be pursuant to a coordinated services plan, developed in accordance with the provisions of this chapter. (a) (1)  Services provided by or through the Departments of Mental Health and for Children and Families and the Agency of Education to children and adolescents with a severe emotional disturbance shall be pursuant to a coordinated services plan, developed in accordance with the provisions of this chapter.
    2. Nothing in the provisions of this chapter shall be construed to grant an entitlement to any child or adolescent with a severe emotional disturbance to receive any educational, residential, mental health, or other service until and unless the General Assembly further provides that such children and adolescents or any subgroup thereof are so entitled.
    1. The State Board of Education, the Department of Mental Health, and the Department for Children and Families shall jointly adopt rules implementing the provisions of this chapter. Such rules shall: (b) (1)  The State Board of Education, the Department of Mental Health, and the Department for Children and Families shall jointly adopt rules implementing the provisions of this chapter. Such rules shall:
      1. provide guidelines for local interagency teams for development of procedures, with public participation, relating to:
        1. referral, assessment, development, annual review, and revision of coordinated service plans, and time frames for these activities;
        2. fixing responsibility for case management; and
        3. notice to parents and guardians and other agencies;
      2. protect the rights of children and adolescents and their parents and guardians concerning consent and confidentiality; and
      3. ensure that matters unresolved after State interagency team review are subject to procedures for notice, hearing, and decisions of contested cases consistent with the provisions of 3 V.S.A. chapter 25.
    2. Local interagency teams shall submit procedures developed in accordance with the rules adopted under subdivision (1)(A) of this subsection to the Advisory Board for review and comment. Thereafter, the proposed procedures shall be submitted to the Secretary and the Commissioners, who shall approve the procedures if all the elements specified in subdivision (1)(A) of this subsection are satisfied.
  1. The Commissioners of Mental Health and for Children and Families and the Secretary of Education shall jointly submit to the General Assembly a report on the status of programs for children and adolescents with a severe emotional disturbance and their families, which shall include a system of care plan. The report shall be submitted together with the general appropriation bill provided for by 32 V.S.A. § 701 . The system of care plan shall:
    1. identify the characteristics and number of children and adolescents with a severe emotional disturbance in need of appropriate services, describe the educational, residential, mental health or other treatment services needed, describe currently available programs and resources, recommend a plan to meet the needs of such children, recommend priorities for the continuation or development of programs and resources, and make an assessment of the success of such programs; and
    2. provide information as available on the extent to which children and adolescents with a severe emotional disturbance have not received services, the characteristics and number of those children and adolescents who have not received services and recommendations on how to address their identified needs.
  2. Nothing contained in this chapter shall be construed to diminish the rights of children with disabilities, their parents, guardians, or surrogate parents under federal or State law, including confidentiality, consent for services and evaluation, and parental involvement.
  3. Nothing contained in this chapter shall entitle children and adolescents with a severe emotional disturbance to special education services unless they are otherwise eligible for such services under State or federal law.
  4. Except as otherwise provided in chapters 51, 52, and 53 of this title, the receipt of appropriate services for a child or adolescent with a severe emotional disturbance or the child or adolescent's family, including an out-of-home placement, shall not be conditioned on placement of the child or adolescent in the legal custody, protective supervision, or protection of the Department for Children and Families.

    Added 1987, No. 264 (Adj. Sess.), § 2; amended 1989, No. 187 (Adj. Sess.), § 5; 1989, No. 203 (Adj. Sess.), §§ 4, 5; 1995, No. 137 (Adj. Sess.), § 1; 1995, No. 174 (Adj. Sess.), § 3; 2013, No. 92 (Adj. Sess.), § 296, eff. Feb. 14, 2014; 2013, No. 131 (Adj. Sess.), § 72, eff. May 20, 2014; 2015, No. 23 , § 60.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 3 V.S.A. § 35 by 1989, No. 203 (Adj. Sess.), §§ 4, 5, were incorporated in the text of this section.

Amendments--2015. Subdiv. (b)(12): Inserted "the Secretary and" preceding "the Commissioners" in the second sentence.

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--1995 (Adj. Sess.) Act No. 137 amended subsec. (c) generally and added subsec. (g).

Act No. 174 substituted "departments of developmental and mental health services" for "departments of mental health and mental retardation" in the first paragraph of subsec. (a) and in the first sentence of the introductory paragraph of subsec. (b), and substituted "commissioners of developmental and mental health services" for "commissioners of mental health and mental retardation" in the first sentence of the introductory paragraph of subsec. (c).

Amendments--1989 (Adj. Sess.). Subsec. (a): Act No. 1987 inserted "and mental retardation" following "mental health" in the first sentence of the first paragraph.

Act No. 203 inserted "pursuant to a coordinated services plan, developed" preceding "in accordance with" and deleted "an individual plan and in a coordinated manner as provided by" thereafter in the first sentence of the first paragraph.

Subsec. (b): Act No. 187 inserted "and mental retardation" following "mental health" in the first sentence of the introductory paragraph.

Amended generally by Act No. 203.

Subsec. (c): Act no. 187 inserted "and mental retardation" following "mental health" in the first sentence.

Legislative intent. 1987, No. 264 (Adj. Sess.), § 1, provided:

"This act is intended to develop and implement a coordinated system of care so that children and adolescents with a severe emotional disturbance and their families will receive appropriate educational, residential, mental health and other treatment services in accordance with an individual plan. The commissioners of mental health (now mental health and mental retardation), of education, and of social and rehabilitation services shall coordinate the provision of services in accordance with an individual plan. The act establishes a means by which to improve the delivery of services by determining who is in charge of the services, by clarifying the administrative process by which they are to be available, and to mandate participation in the process by the three departments.

"The receipt of services or benefits under this act is not intended to be conditioned upon placement of a child in the legal custody, protective supervision or protection of the department of social and rehabilitation services."

Prior law. 3 V.S.A. § 35.

CHAPTER 45. CHILDREN'S COMPREHENSIVE DENTAL HEALTH PROGRAM

Sec.

§§ 4501-4510. Repealed. 2013, No. 131 (Adj. Sess.), § 73, eff. May 20, 2014.

History

Former §§ 4501-4510. Former § 4501, relating to definitions for the Children's Comprehensive Dental Health Program, was derived from 1973, No. 84 , § 1 and amended by 1973, No. 152 (Adj. Sess.), § 34; 1979, No. 127 (Adj. Sess.), § 2; 1999, No. 147 (Adj. Sess.), § 4 and 2005, No. 174 (Adj. Sess.), § 140.

Former § 4502, relating to the formulation and administration of a comprehensive dental program, was derived from 1973, No. 84 , § 1.

Former § 4503, relating to provision of care, was derived from 1973, No. 84 , § 1.

Former § 4504, relating to payments to providers, was derived from 1973, No. 84 , § 1.

Former § 4505, relating to cooperation of private dentists, was derived from 1973, No. 84 , § 1.

Former § 4506, relating to types of services, was derived from 1973, No. 84 , § 1.

Former § 4507, relating to eligibility for program, was derived from 1973, No. 84 , § 1.

Former § 4508, relating to comprehensive dental health, was derived from 1973, No. 84 , § 1 and amended by 1979, No. 127 (Adj. Sess.), § 3; 1981, No. 108 , § 319; 1985, No. 178 (Adj. Sess.), § 3 and 1989, No. 115 .

Former § 4509, relating to education, was derived from 1973, No. 84 , § 1.

Former § 4510, relating to double coverage limitations, was derived from 1979, No. 127 (Adj. Sess.), § 4.

CHAPTER 46. BUILDING BRIGHT FUTURES COUNCIL

Sec.

§ 4601. Definitions.

As used in this chapter:

  1. "Early care, health, and education" means all services provided to families expecting a child and to children up to the age of six, including child care, family support, early education, mental and physical health services, nutrition services, and disability services.
  2. "Regional council" means a regional entity linked to the State Building Bright Futures Council to support the creation of an integrated system of early care, health, and education at the local level.

    Added 2009, No. 104 (Adj. Sess.), § 2, eff. May 12, 2010.

§ 4602. Building Bright Futures Council.

  1. The Building Bright Futures Program shall be governed by a statewide council comprising no more than 23 members. The Building Bright Futures Council's membership shall be as follows:
    1. The Secretary of Human Services or designee.
    2. The Secretary of Commerce and Community Development or designee.
    3. The Secretary of Education or designee.
    4. The Commissioner for Children and Families or designee.
    5. The Commissioner of Health or designee.
    6. The Commissioner of Mental Health or designee.
    7. One member of the House of Representatives, appointed by the Speaker of the House.
    8. One member of the Senate, appointed by the Senate Committee on Committees.
    9. The Head Start Collaboration Office Director.
    10. Fourteen at-large members, appointed by the Governor based on their commitment to early childhood well-being and representing a range of perspectives and geographic diversity. The Governor shall consider the recommendations of the Council's nominating committee. One of the at-large members shall be a representative of a local Head Start program and one shall be a member of a school board, to be recommended by the Vermont School Boards Association.
    1. An individual designated to participate on the Council on behalf of a Secretary or Commissioner listed in subsection (a) of this section shall count toward a quorum of the Council and shall be permitted to vote on Council business. (b) (1)  An individual designated to participate on the Council on behalf of a Secretary or Commissioner listed in subsection (a) of this section shall count toward a quorum of the Council and shall be permitted to vote on Council business.
    2. In the event of a vacancy in one of the at-large member positions on the Council, the remaining members shall endeavor to fill the vacancy with an individual representing a perspective or geographic area not currently represented on the Council.
  2. Technical assistance to the Council shall be provided by staff within the Agency of Education and the Departments of Health and for Children and Families.
  3. For Council meetings held when the General Assembly is not in session, the legislative members of the Council shall be entitled to per diem compensation and reimbursement of expenses in accordance with 2 V.S.A. § 23 . Members of the Council who are not State employees or whose participation is not supported through their employment or association may be entitled to compensation and reimbursement for expenses for attending meetings of the Council under 32 V.S.A. § 1010 to the extent funds are available.
  4. The Council shall function as a public-private partnership with the ability to raise and disburse funds.
  5. The Council shall support the establishment of, and maintenance of relationships with, regional councils providing regional capacity to further the Council's goals.

    Added 2009, No. 104 (Adj. Sess.), § 2, eff. May 12, 2010; amended No. 156 (Adj. Sess.), § E.318.1, eff. May 12, 2010; 2013, No. 92 (Adj. Sess.), § 298, eff. Feb. 14, 2014; 2013, No. 100 (Adj. Sess.), § 1, eff. April 8, 2014; 2021, No. 20 , § 330.

History

Amendments--2021. Subsec. (d): Substituted "2 V.S.A. § 23" for "2 V.S.A. § 406".

Amendments--2013 (Adj. Sess.). Subdiv. (a)(3): Act 92 substituted "Secretary of Education" for "commissioner of education".

Subdivs. (a)(3)-(a)(6): Act 100 inserted "or designee" at the ends of subdivs.

Subdiv. (a)(7): Act 100 substituted "One member" for "two members" preceding "of the House".

Subdiv. (a)(8): Act 100 substituted "One member" for "at least one but no more than two members" preceding "of the Senate".

Subdiv. (a)(10): Act 100 substituted "Fourteen" for "12" preceding "at-large members".

Subsec. (b): Added subdiv. (1) and redesignated former subsec. (b) as present subdiv. (b)(2).

Amendments--2009 (Adj. Sess.) Subdiv. (a)(10): Substituted "appointed by the governor based on" for "selected on the basis of" in the first sentence, added the second sentence, and substituted "recommended" for "chosen" in the third sentence.

§ 4603. Powers and duties.

The Council established by section 4602 of this title shall have the following powers and duties necessary and appropriate to effectuating the purposes of this chapter:

  1. Advise the Administration and General Assembly on:
    1. the status and needs of the early care, health, and education system by conducting a review of the status of young children in Vermont and the care, health, and education services and systems that support them; and
    2. planning related to and the administration and operation of Vermont's child care system.
  2. Monitor overall system performance by regularly tracking and reporting system data on the well-being of young children and the performance of the system of care related to the Council's commitments to children and selected population-level indicators.
  3. Develop an early care, health, and education system plan for Vermont to serve as the basis for policy and funding recommendations, which shall reflect the growing diversity of Vermont's children and families.
  4. Review and formulate recommendations for amendments or revisions to policies or rules that may impede the ability to address State and local priorities and the ability to ensure system effectiveness.
  5. Work with the Secretaries of Human Services, of Commerce and Community Development, and of Education to ensure the coordination of existing budgets and policies that affect the care, health, and education of young children.
  6. Identify and reduce duplication of services and of administrative approval processes and improve coordination across agencies.
  7. Work with the Agencies of Human Services, of Commerce and Community Development, and of Education, and the regional councils to coordinate and integrate the development of an early childhood budget recommendation that reflects alignment of funding with priorities identified in the system plan.
  8. Support the regional councils in their efforts to coordinate and implement services in accordance with identified priorities in system and regional plans.
  9. Contract with State agencies and departments to deliver services as agreed upon.
  10. Pursue and accept funding from diverse sources outside State government to sustain, expand, and enhance the early care, health, and education system according to the early care, health, and education system plan.
  11. Disburse funds raised through fund development activities in accordance with priorities defined in the system plan.
  12. Convene members of the child care community, medical community, education community, business community, and other organizations, as well as State agencies serving young children, to ensure that families receive quality services in the most efficient and cost-effective manner.
  13. Select the key performance measures to be tracked in early childhood programs and identify priority strategies to improve results.
  14. Ensure children from birth to six years of age are included in statistical data systems developed by the Agency of Education and other state agencies and that all such systems are interoperable.
  15. Analyze data to assess progress in achieving the population-level outcomes relevant to children set forth in 3 V.S.A. § 2311 and make recommendations for any necessary adjustments.
  16. Report to the Governor, the Chief Performance Officer, and the legislative committees of jurisdiction during the first month of each legislative biennium on the Council's findings and recommendations, progress toward achieving the population-level outcomes relevant to children set forth in 3 V.S.A. § 2311 , and recommendations for priorities for the biennium. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subdivision.

    Added 2009, No. 104 (Adj. Sess.), § 2, eff. May 12, 2010; amended 2013, No. 92 (Adj. Sess.), § 299, eff. Feb. 14, 2014; 2013, No. 142 (Adj. Sess.), § 71; 2015, No. 11 , § 37; 2021, No. 20 , § 331; 2021, No. 45 , § 9.

History

Amendments--2021. Subdiv. (1): Amended generally by Act No. 45.

Subdiv. (3): Act No. 45 inserted ", which shall reflect the growing diversity of Vermont's children and families".

Subdiv. (4): Act No. 20 substituted "or rules" for ", rules, or regulations".

Subdiv. (12): Act No. 45 inserted "business community," following "education community,".

Amendments--2015. Section amended generally.

Amendments--2013 (Adj. Sess.). Subdiv. (5): Act No. 92 substituted "Secretaries of Human Services, of Commerce and Community Development, and of Education" for "secretaries of human services and of commerce and community development and the commissioner of education".

Subdiv. (7): Act No. 92 substituted "Agencies of Human Services, of Commerce and Community Development, and of Education" for "agencies of human services and of commerce and community development, the department of education".

Subdiv. (14): Act No. 92 substituted "Agency of Education" for "department of education".

Subdiv. (16): Act No. 142 added the second sentence.

§ 4604. Limitation of scope.

Nothing in this chapter shall be construed to supersede or usurp the statutory powers or authority of any State agency or department or any school district.

Added 2009, No. 104 (Adj. Sess.), § 2, eff. May 12, 2010.

CHAPTER 47. CHILDREN AT RISK OF SCHOOL FAILURE

Sec.

Cross References

Cross references. Preventing early school failure, see 16 V.S.A. § 2903.

Prevention of juvenile delinquency and other problem behaviors, see chapter 33 of this title.

§ 4701. Legislative findings and purpose.

  1. The General Assembly finds that early intervention and family support services offers the chance for children at risk of school failure to enter school better prepared to learn. Children who succeed in school are more likely to fulfill their potential as adults. An early investment in a child's learning potential may lessen the need for remedial services. The role of parents as their child's first teachers should be strengthened through a community-based system of early childhood services that provide the earliest opportunity to identify and serve children at risk of school failure. The State shall provide, or assist parents in the provision of such aid through community-based public or private early childhood development services for as long as the parents are eligible and continue to desire such services for themselves and their children. However, parents may refuse aid or services or may discontinue these services at any time without incurring any record or presumption of neglect or abuse based solely on their decision to reject these services.
  2. The General Assembly finds that early education contributes to the health of our society just as importantly as does good nutrition and proper immunization. Children's healthy intellectual development is greatly enhanced by their early and consistent exposure to books and other educational materials and experiences. The General Assembly also finds that opportunity for school success may be enhanced for children at risk of school failure by providing parents of such children with information on a variety of approaches to child development.
  3. The General Assembly finds that currently available early child development services are provided by many State departments and community agencies, but they are not uniformly available or coordinated or sufficiently well known by parents.
  4. Therefore, it is the policy of the State of Vermont and this chapter to offer all families assistance in the preparation of their children for school, from the time of birth onward, through a community-based education and human services system with the capability to identify preschool children at risk of school failure and to reduce this number through health, education, and family support programs. It is the goal of this chapter that few children enter school at risk of school failure, and that those who do have been previously identified where possible and have received appropriate early education, child care, and health care services on a voluntary basis. A goal of this chapter is to widely disseminate public information about State laws related to child abuse and neglect.

    Added 1989, No. 266 (Adj. Sess.), § 1; amended 1993, No. 154 (Adj. Sess.), § 1.

History

Codification. This section was originally enacted as 33 V.S.A. § 1071 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Revision note. Subsection designations added to conform section to V.S.A. style.

Amendments--1993 (Adj. Sess.). Section amended generally.

§ 4702. System for services to children at risk of school failure.

  1. As used in this chapter:
    1. "At risk" means those children from birth to age 72 months who have a diagnosed physical or mental condition that has a high probability of resulting in a developmental delay, or who have a high probability of experiencing failure in school due to biological, medical, or environmental factors.
    2. "School failure" means failure to develop essential skills in reading, writing, and mathematics appropriate to age level.
  2. The Secretaries of Human Services and of Education shall develop and implement, through community-based organizations, a coordinated system of State and local agencies that identifies children at risk of school failure, makes available to them and their families, as eligible and willing, coordinated early education and support services individually designed with each family and based on a family's identified needs, and encourages parents to use these services. After an informational meeting and prior to family participation in any screenings or services to be conducted in the home, the provider visiting the home shall explain the confidentiality policies and abuse and neglect reporting requirements. A parent shall be required to sign a form acknowledging their awareness of these policies and requirements. All services shall be voluntary, and when a local community chooses to offer services in the home, an alternative site shall be provided for families desiring services but not home visits.
  3. This system shall be accessible to local public review and comment in the Agency of Human Services districts where these programs are in service through two warned public meetings per year. Two weeks in advance of these meetings, documents that fully describe program activities, including reports, budgets, plans, and working guidelines, shall be made available to school boards in program service areas and at the area lead agency. These meetings shall be co-chaired by an elected school board director or superintendent in the district and an official of the program's lead agency. The lead agency in each district, in cooperation with the Agencies of Human Services and of Education, shall annually present a report of its activities and expenditures to appropriate committees of the General Assembly.
  4. The Agency of Education and the Agency of Human Services shall have authority to adopt rules under 3 V.S.A. chapter 25 as necessary to implement this chapter. In addition, either agency shall initiate rule-making if requested by a majority of the involved community-based lead agencies, or by the public as provided in 3 V.S.A. § 831(c) .
  5. Nothing in this chapter shall create an entitlement.

    Added 1989, No. 266 (Adj. Sess.) § 1; amended 1993, No. 154 (Adj. Sess.), § 1; 2013, No. 92 (Adj. Sess.), § 300, eff. Feb. 14, 2014; 2021, No. 20 , § 332.

History

Codification. This section was originally enacted as 33 V.S.A. § 1072 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2021. Subsec. (a): Deleted the subsection heading.

Amendments--2013 (Adj. Sess.). Subsec. (b): Substituted "Secretaries of Human Services and of Education" for "secretary of human services and the commissioner of education".

Subsec. (c): Substituted "Agencies of Human Services and of Education" for "agency of human services and the department of education" and "General Assembly" for "legislature".

Subsec. (d): Substituted "Agency of Education and the Agency of Human Services shall" for "department of education and the agency of human services", "V.S.A. chapter 25" for "chapter 25 of Title", "either agency" for "the department or agency", and "V.S.A. § 831(c)" for "subsection 831(c) of Title".

Amendments--1993 (Adj. Sess.). Section amended generally.

CHAPTER 49. CHILD WELFARE SERVICES

History

Legislative findings. 2015, No. 60 , § 1 provides: "(a) In 2014, the tragic deaths of two children exposed problems with Vermont's system intended to protect children from abuse and neglect. This act is intended to address these problems and implement the recommendations of the Joint Legislative Committee on Child Protection created by 2014 Acts and Resolves No. 179, Sec. C.109 and improve our State's system for protecting our children to help prevent future tragedies.

"(b) To better prevent child abuse and neglect, Vermont must invest in proven strategies to support and strengthen families.

"(c) To better protect Vermont's children from abuse and neglect, and to address the increasing burden of drug abuse and other factors that are ripping families apart, the General Assembly believes that our State's child protection system must be focused on the safety and best interests of children, and be comprehensive and properly funded. This system must ensure that:

"(1) the dedicated frontline professionals, including guardians ad litem, who struggle to handle the seemingly ever-increasing caseloads have the support, training, and resources necessary to do their job;

"(2) children who have suffered abuse and neglect can find safe, nurturing, and permanent homes, whether with their custodial parents, relatives, or other caring families and individuals;

"(3) the most serious cases of abuse are thoroughly investigated and prosecuted if appropriate;

"(4) courts have the information and tools necessary to make the best possible decisions;

"(5) all participants in the child protection system, from the frontline caseworker to the judge determining ultimate custody, work together to prioritize the child's safety and best interests; and

"(6) an effective oversight structure is established.

"(d) This act is only the beginning of what must be an ongoing process in which the House and Senate Committees on Judiciary, the Senate Committee on Health and Welfare, the House Committee on Human Services, in consultation with the Senate and House Committees on Appropriations, continue to enhance the statewide approach to the prevention of child abuse and neglect."

ANNOTATIONS

Cited. State v. Searles, 159 Vt. 525, 621 A.2d 1281 (1993).

Subchapter 1. General Provisions

§ 4901. Statement of purposes.

The Department may cooperate with the appropriate federal agency for the purpose of establishing, extending, and strengthening services that supplement or substitute for parental care and supervision, including:

  1. preventing, remedying, or assisting in the solution of problems that may result in neglect, abuse, exploitation, or delinquency of children;
  2. protecting and caring for homeless, dependent, or neglected children;
  3. protecting and promoting the welfare of children of working parents;
  4. otherwise protecting and promoting the welfare of children, including the strengthening of their homes where possible or, where needed, providing adequate care away from their homes in child-care facilities; and
  5. assisting youth in a successful transition to an independent adulthood, including the avoidance of homelessness, incarceration, and substance abuse.

    Added 1967, No. 147 , § 5; amended 2005, No. 174 (Adj. Sess.), § 117; 2007, No. 74 , § 1, eff. June 6, 2007.

History

Amendments--2007. Subdiv. (5): Added.

Amendments--2005 (Adj. Sess.). Subdiv. (3): Substituted "parents" for "mothers".

Prior law. 33 V.S.A. § 2751.

§ 4902. Definitions.

As used in this chapter:

  1. "Child" means a person under 18 years of age committed by the Family Division of the Superior Court to the Department for Children and Families.
  2. "Commissioner" means the Commissioner for Children and Families.
  3. "Department" means the Department for Children and Families.
  4. "Foster care" means care of a child, for a valuable consideration, in a child care institution or in a family other than that of the child's parent, guardian, or relative.

    Added 1967, No. 147 , § 5; amended 1973, No. 152 (Adj. Sess.), §§ 22, 31, eff. April 14, 1974; 1981, No. 171 (Adj. Sess.), § 2, eff. April 20, 1982; 1983, No. 248 (Adj. Sess.), § 5; 1989, No. 42 , eff. May 5, 1989; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 118; 2013, No. 131 (Adj. Sess.), § 74, eff. May 20, 2014; 2021, No. 20 , § 333.

History

Revision note. In subdiv. (1) substituted "April 14, 1974" for "the effective date of this act" for purposes of clarity.

Amendments--2021. Intro. para.: Deleted "Unless otherwise specifically provided," at the beginning of the paragraph.

Subdiv. (1): Substituted "Family Division of the Superior" for "Juvenile."

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--2005 (Adj. Sess.). Section amended generally.

Amendments--1999 (Adj. Sess.). Subdiv. (1): Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare".

Amendments--1989. Subdiv. (3): Rewrote the fourth sentence.

Amendments--1983 (Adj. Sess.). Subdiv. (2): Added "but not including a kindergarten approved by the state board of education" following "relative".

Amendments--1981 (Adj. Sess.). Subdiv. (1): Added exception following "thereafter".

Subdiv. (3): Renumbered as subdiv. (4) and a new subdiv. (3) added.

Subdivs. (4) and (5): Renumbered as subdivs. (5) and (6) respectively.

Subdiv. (6): Renumbered from subdiv. (5).

Amendments--1973 (Adj. Sess.). Subdiv. (1): Deleted "or the age of majority in the case of a person" preceding "committed" and added "prior to the effective date of this act and to the department of social and rehabilitation services thereafter" following "welfare".

Subdiv. (4) and (5): Added.

Prior law. 33 V.S.A § 2752.

ANNOTATIONS

1. Foster care payments.

For purposes of Social Security benefits, foster care payments to foster parents are to be considered property of the foster parents rather than support from State to child, where provision of this section defines foster care as "care of a child, for a valuable consideration," and Department of Social Welfare regulations refer to foster care as "purchased," and foster parents are given near-total freedom in spending the payments. Damon v. Secretary of Health, Education & Welfare, 557 F.2d 31 (2d Cir. 1977).

Cited. Shields v. Gerhart, 155 Vt. 141, 582 A.2d 153 (1990).

§ 4903. Responsibility of Department.

The Department may expend, within amounts available for the purposes, what is necessary to protect and promote the welfare of children and adults in this State, including the strengthening of their homes whenever possible, by:

  1. Investigating complaints of neglect, abuse, or abandonment of children.
  2. Providing aid and services to the extent necessary for the purpose of permitting children to remain in their own homes.
  3. Supervising and controlling children committed to it by a court.
  4. Providing substitute parental care and custody for a child upon application of his or her parent, guardian, or any person acting in behalf of the child, when after investigation it is found that the care and custody will be in the best interests of the child. The acceptance of a child by the Department shall not abrogate parental rights or responsibilities, but the Department may accept from the parents temporary delegation of certain rights and responsibilities necessary to provide care and custody for a period of up to six months under conditions agreed upon by the parents and the Department. Upon a stipulation approved by the Family Division of the Superior Court, the period may be extended for additional periods of up to six months each, provided that each extension is first determined by the parties to be necessary, and that it is in the best interests of the child.
  5. Providing financial aid to persons who were committed to the Department at the time they attained the age of majority and who are completing an educational, vocational, or technical training program designed to equip them for gainful employment.
  6. Providing aid to certain adopted children who prior to their adoption were in the care and custody of the Department.
  7. Providing aid to a child in the permanent guardianship of a relative if the child was in the care and custody of the Department and was placed in the home of the relative for at least six months prior to the creation of the guardianship.

    Added 1967, No. 147 , § 5; amended 1971, No. 206 (Adj. Sess.); 1975, No. 19 ; 1981, No. 243 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 119; 2009, No. 97 (Adj. Sess.), § 2; 2021, No. 20 , § 334.

History

Amendments--2021. Subdiv. (4): Substituted "interests" for "interest" in the first and last sentences; and substituted "Family Division of the Superior" for "Juvenile" in the last sentence.

Amendments--2009 (Adj. Sess.) Subdiv. (7): Added.

Amendments--2005 (Adj. Sess.). Subdiv. (4): Inserted "or her" following "his" in the first sentence.

Amendments--1981 (Adj. Sess.). Subdiv. (4): Amended generally.

Amendments--1975. Subdiv. (4): Substituted "period of up to one year" for "not more than one year and" preceding "under" and "department" for "commissioner" following "parents and the" in the second sentence and added the third sentence.

Amendments--1971 (Adj. Sess.). In the opening paragraph, added "and adults" following "children".

Subdivs. (5), (6): Added.

Prior law. 33 V.S.A. § 2801.

ANNOTATIONS

1. Petition by State's Attorney.

There is no requirement that a voluntary petition by a parent, guardian, or person acting in behalf of a child be the only means for the State to intervene and provide substitute parental care and custody for a child; the Commissioner of Social and Rehabilitation Services may request the State's Attorney to file a petition, which gives a court full authority to make the determination of whether or not a child is in need of care and supervision. In re S.A.M., 140 Vt. 194, 436 A.2d 736 (1981).

§ 4904. Foster care; transitional youth services.

  1. As used in this section, "youth" means a person between 18 and 22 years of age who either:
    1. attained his or her 18th birthday while in the custody of the Commissioner for Children and Families; or
    2. while he or she was between 10 and 18 years of age, spent at least five of those years in the custody of the Commissioner for Children and Families.
    1. The Department shall provide foster care services as described in subsection (c) of this section to: (b) (1)  The Department shall provide foster care services as described in subsection (c) of this section to:
      1. any youth who elects to continue receiving such services after attaining the age of 18;
      2. any individual under the age of 22 who leaves State custody after the age of 16 and at or before the age of 18 or any youth provided he or she voluntarily requests additional support services.
    2. The Department shall require a youth receiving services under this section to be employed, to participate in a program to promote employment or remove barriers to employment, or to attend an educational or vocational program, and, if the youth is working, require that he or she contribute to the cost of services based on a sliding scale, unless the youth meets the criteria for an exception to the employment and educational or vocational program requirements of this section based on a disability or other good cause. The Department shall establish rules for the requirements and exceptions under this subdivision.
  2. The Commissioner shall establish by rule a program to provide a range of age-appropriate services for youth to ensure a successful transition to adulthood, including foster care and other services provided under this chapter to children as appropriate, housing assistance, transportation, case management services, assistance with obtaining and retaining health care coverage or employment, and other services. At least 12 months prior to a child attaining his or her 18th birthday, the Department shall assist the child in developing a transition plan. When developing the transition plan, the child shall be informed about the range of age-appropriate services and assistance available in applying for or obtaining these services.
  3. [Repealed.]

    Added 2007, No. 74 , § 2, eff. June 6, 2007; amended 2009, No. 97 (Adj. Sess.), §§ 3, 4; 2013, No. 142 (Adj. Sess.), § 102.

History

2013. In the introductory language for subsec. (a), substituted "As used in" for "For purposes of" preceding "this chapter" to conform to V.S.A. style.

Amendments--2013 (Adj. Sess.). Subsec. (d): Repealed.

Amendments--2009 (Adj. Sess.) Subdiv. (b)(2): Inserted "to participate in a program to promote employment or remove barriers to employment" following "to be employed" in the first sentence.

Subsec. (c): Substituted "care coverage" for "insurance" following "health" in the first sentence and added the second and third sentences.

§ 4905. Foster care and placement licensing.

  1. A person other than an employee of a department within the Agency of Human Services shall not place any child in foster care for more than 15 consecutive days unless the person has a license from the Department to do so or is an employee of a child-placing agency licensed by that Department.
  2. A person shall not receive, board, or keep any child in foster care for more than 15 consecutive days unless he or she has a license from the Department to do so. This subsection shall not apply to foster homes approved by a department within the Agency of Human Services or by a licensed child-placing agency, nor shall it apply to those facilities where educational or vocational training is the primary service and foster care is a supportive service only.
  3. This section shall not restrict the right of a court, parent, guardian, or relative to place a child, nor the right of a person not in the business of providing foster care or child care to receive, board, and keep a child when a valuable consideration is not demanded or received for the child's care and maintenance.

    Added 2013, No. 131 (Adj. Sess.), § 75.

History

2013 (Adj. Sess.). Former § 3501 of this title was recodified as § 4905 by 2013, No. 131 (Adj. Sess.), § 75.

§ 4906. Foster care; reasonable and prudent parent standard.

  1. As used in this section:
    1. "Caregiver" means a foster parent, including a kinship foster parent or residential treatment or other program, with whom a child or youth in the custody of the Commissioner for Children and Families has been placed.
    2. "Reasonable and prudent parent standard" means the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child or youth in the custody of the Commissioner while at the same time encouraging the emotional and developmental growth of the child that a caregiver shall use when determining whether to allow a child in the custody of the Commissioner to participate in extracurricular, enrichment, cultural, and social activities.
  2. A caregiver shall use the reasonable and prudent parent standard when determining whether to allow a child in the custody of the Commissioner to participate in extracurricular, enrichment, cultural, and social activities.
  3. A caregiver shall not be liable for injuries to a child in the custody of the Commissioner that occur as a result of acting in accordance with the reasonable and prudent parent standard. A caregiver acting in good faith in compliance with the reasonable and prudent parent standard shall be immune from civil liability arising from such action.

    Added 2017, No. 106 (Adj. Sess.), § 1.

Subchapter 2. Reporting Abuse of Children

History

Agency of human services; child protection registry; vulnerable adult abuse, neglect, and exploitation registry. 2009, No. 1 , § 6a provides: "The agency of human services, the commissioner of the department for children and families, and the commissioner of the department of disabilities, aging, and independent living shall implement protocols for sharing and providing information from the child protection registry and from the vulnerable adult abuse, neglect, and exploitation registry in a coordinated manner to those entities authorized by law to receive such information. Protocols shall focus on the most efficient and timely manner to provide such information to authorized requestors."

Cross References

Cross references. Sexual exploitation of children, see 13 V.S.A. chapter 64.

§ 4911. Purpose.

The purpose of this subchapter is to:

  1. protect children whose health and welfare may be adversely affected through abuse or neglect;
  2. strengthen the family and make the home safe for children whenever possible by enhancing the parental capacity for good child care;
  3. provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes require the reporting of suspected child abuse and neglect, an assessment or investigation of such reports and provision of services, when needed, to such child and family;
  4. establish a range of responses to child abuse and neglect that take into account different degrees of child abuse or neglect and that recognize that child offenders should be treated differently from adults; and
  5. establish a tiered child protection registry that balances the need to protect children and the potential employment consequences of a registry record for persons who are substantiated for child abuse and neglect.

    Added 1981, No. 207 (Adj. Sess.), § 1, eff. April 25, 1982; amended 2007, No. 168 (Adj. Sess.), § 1.

History

Revision note. Substituted "this subchapter" for "this chapter" in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Deleted "to" preceding "strengthen", "make", "provide" and "require" as repetitive.

Amendments--2007 (Adj. Sess.). Subdiv. (1): Substituted "Protect" for "protect" preceding "children".

Subdiv. (2): Substituted "Strengthen" for "strengthen" preceding "the family".

Subdiv. (3): Substituted "Provide" for "provide" preceding "a temporary" and inserted "an assessment or" preceding "investigation".

Subdivs. (4) and (5): Added.

Prior law. 33 V.S.A. § 681.

ANNOTATIONS

1. Duty.

It is beyond dispute that this section and § 4915 of this title create a duty on the part of the Department of Social and Rehabilitation Services to assist a particular class of persons to which plaintiffs belong (child abuse victims) and to prevent the type of harm suffered by plaintiffs (sexual abuse by their stepfather). Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995).

Law review commentaries

Law review. For note, "Interstate Testimony By Child Protective Agency Workers in the Child Custody Context," see 21 Vt. L. Rev. 633 (1996).

§ 4912. Definitions.

As used in this subchapter:

  1. "Abused or neglected child" means a child whose physical health, psychological growth and development, or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent or other person responsible for the child's welfare. An "abused or neglected child" also means a child who is sexually abused or at substantial risk of sexual abuse by any person and a child who has died as a result of abuse or neglect.
  2. "Assessment" means a response to a report of child abuse or neglect that focuses on the identification of the strengths and support needs of the child and the family and any services they may require to improve or restore their well-being and to reduce the risk of future harm. The child and family assessment does not result in a formal determination as to whether the reported abuse or neglect has occurred.
  3. "Child" means an individual under the age of majority.
  4. "Child Protection Registry" means a record of all investigations that have resulted in a substantiated report on or after January 1, 1992.
  5. "Emotional maltreatment" means a pattern of malicious behavior that results in impaired psychological growth and development.
  6. "Harm" can occur by:
    1. Physical injury or emotional maltreatment.
    2. Failure to supply the child with adequate food, clothing, shelter, or health care. As used in this subchapter, "adequate health care" includes any medical or nonmedical remedial health care permitted or authorized under State law. Notwithstanding that a child might be found to be without proper parental care under chapters 51 and 53 of this title, a parent or other person responsible for a child's care legitimately practicing his or her religious beliefs who thereby does not provide specified medical treatment for a child shall not be considered neglectful for that reason alone.
    3. Abandonment of the child.
  7. "Investigation" means a response to a report of child abuse or neglect that begins with the systematic gathering of information to determine whether the abuse or neglect has occurred and, if so, the appropriate response. An investigation shall result in a formal determination as to whether the reported abuse or neglect has occurred.
  8. "Member of the clergy" means a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, or person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner.
  9. "Multidisciplinary team" means a group of professionals, paraprofessionals, and other appropriate individuals impaneled by the Commissioner under this chapter for the purpose of assisting in the identification and review of cases of child abuse and neglect, coordinating treatment services for abused and neglected children and their families, and promoting child abuse prevention.
  10. "Person responsible for a child's welfare" includes the child's parent, guardian, foster parent, any other adult residing in the child's home who serves in a parental role, an employee of a public or private residential home, institution, or agency, or other person responsible for the child's welfare while in a residential, educational, or child care setting, including any staff person.
  11. "Physical injury" means death or permanent or temporary disfigurement or impairment of any bodily organ or function by other than accidental means.
  12. "Redacted investigation file" means the intake report, the investigation activities summary, and case determination report that are amended in accordance with confidentiality requirements set forth in section 4913 of this title.
  13. "Registry record" means an entry in the Child Protection Registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.
  14. "Risk of harm" means a significant danger that a child will suffer serious harm by other than accidental means, which harm would be likely to cause physical injury, or sexual abuse, including as the result of:
    1. a single, egregious act that has caused the child to be at significant risk of serious physical injury;
    2. the production or preproduction of methamphetamines when a child is actually present;
    3. failing to provide supervision or care appropriate for the child's age or development and, as a result, the child is at significant risk of serious physical injury;
    4. failing to provide supervision or care appropriate for the child's age or development due to use of illegal substances or misuse of prescription drugs or alcohol;
    5. failing to supervise appropriately a child in a situation in which drugs, alcohol, or drug paraphernalia are accessible to the child; and
    6. a registered sex offender or person substantiated for sexually abusing a child residing with or spending unsupervised time with a child.
  15. "Sexual abuse" consists of any act or acts by any person involving sexual molestation or exploitation of a child, including:
    1. incest;
    2. prostitution;
    3. rape;
    4. sodomy;
    5. lewd and lascivious conduct involving a child;
    6. aiding, abetting, counseling, hiring, or procuring of a child to perform or participate in any photograph, motion picture, exhibition, show, representation, or other presentation that, in whole or in part, depicts sexual conduct, sexual excitement, or sadomasochistic abuse involving a child;
    7. viewing, possessing, or transmitting child pornography, with the exclusion of the exchange of images between mutually consenting minors, including the minor whose image is exchanged;
    8. human trafficking;
    9. sexual assault;
    10. voyeurism;
    11. luring a child; or
    12. obscenity.
  16. "Substantiated report" means that the Commissioner or the Commissioner's designee has determined after investigation that a report is based upon accurate and reliable information that would lead a reasonable person to believe that the child has been abused or neglected.
  17. "Serious physical injury" means, by other than accidental means:
    1. physical injury that creates any of the following:
      1. a substantial risk of death;
      2. a substantial loss or impairment of the function of any bodily member or organ;
      3. a substantial impairment of health; or
      4. substantial disfigurement; or
    2. strangulation by intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.

      Added 1981, No. 207 (Adj. Sess.), § 1, eff. April 25, 1982; amended 1985, No. 211 (Adj. Sess.), §§ 1, 2; 1989, No. 295 (Adj. Sess.), §§ 1, 2; 1991, No. 141 (Adj. Sess.), § 1; 1995, No. 145 (Adj. Sess.), § 5; 2001, No. 135 (Adj. Sess.), § 15, eff. June 13, 2002; 2003, No. 43 , § 2, eff. May 27, 2003; 2003, No. 66 , § 136a; 2007, No. 77 , § 1, eff. June 7, 2007; 2007, No. 168 (Adj. Sess.), § 2; 2007, No. 172 (Adj. Sess.), § 18; 2013, No. 131 (Adj. Sess.), § 76, eff. May 20, 2014; 2015, No. 60 , § 3.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendments to former 33 V.S.A. § 682 by 1989, No. 295 (Adj. Sess.), §§ 1, 2, were incorporated in the text of this section.

2013. In subdiv. (8), deleted "but not limited to" following "including" in accordance with 2013, No. 5 , § 4.

Revision note - Substituted "this subchapter" for "this chapter" in the introductory clause and in subdiv. (3)(C) and substituted "chapter 55" for "chapter 12" in subdiv. (3)(C) in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments--2015. Section amended generally.

Amendments--2013 (Adj. Sess.). Section amended generally.

Amendments--2007 (Adj. Sess.). Subdiv. (5): Act No. 168 inserted "child's" preceding "home".

Act No. 172 substituted "child" for "day" preceding "care setting".

Subdiv. (9); Act No. 168 deleted "of social and rehabilitation services" following "commissioner" and substituted "review" for "investigation" following "identification and".

Subdiv. (14): Act No. 168 substituted "protection" for "abuse and neglect" preceding "registry".

Subdiv. (15): Act No. 168 substituted "child protection agency" for "abuse and neglect" preceding "that".

Subdivs. (16) and (17): Added by Act No. 168.

Amendments--2007. Subdivs. (13)-(15): Added.

Amendments--2003. Subdiv. (11): Repealed.

Subdiv. (12): Added.

Amendments--2001 (Adj. Sess.) Subdiv. (11): Added.

Amendments--1995 (Adj. Sess.) Subdiv. (4): Amended generally.

Amendments--1991 (Adj. Sess.). Amended subdivs. (2)-(4) and (7) generally.

Amendments--1989 (Adj. Sess.). Subdiv. (5): Amended generally.

Subdiv. (9): Deleted "and" preceding "paraprofessionals", inserted "and other appropriate individuals" thereafter, deleted "and for managing and" preceding "coordinating" and added "and promoting child abuse prevention" following "families".

Subdiv. (10): Added.

Amendments--1985 (Adj. Sess.). Subdiv. (2): Added "or a child who is sexually abused by any person" following "person responsible for his welfare".

Subdiv. (5): Inserted "education or day care" preceding "setting".

Prior law. 33 V.S.A § 682.

ANNOTATIONS

Analysis

1. Registry.

Legal and policy standards governing the registry process are plain, and they do not require, nor contemplate, any inquiry into whether the Department for Children and Families (DCF) is also pursuing a child-in-need-of-care-or-supervision petition (CHINS) in family court; thus, the Human Services Board erred in concluding that the DCF could not list a mother in its child-abuse-and-neglect registry unless it also filed a CHINS petition. The registry law clearly addresses the acts or omissions of parents and other individuals, not DCF's response to these actions. In re M.E., 189 Vt. 114, 15 A.3d 112 (2010).

Two statutory procedures of the child-abuse-and-neglect registry and a child-in-need-of-care-or-supervision (CHINS) proceeding are distinct and are in no way dependent on one another. Obviously, the initiation of a CHINS proceeding implicates fundamental interests not at stake in the registry process. In re M.E., 189 Vt. 114, 15 A.3d 112 (2010).

Department for Children and Families (DCF) looks to the degree of misconduct involved in the action of the parent or caretaker and reserves child protection registry inclusion in single incident cases for misconduct that is egregious - that is, outrageously bad or reprehensible. The DCF's approach is consistent with the statute which requires that the risk of harm to the child be "substantial" and create "significant" danger, and the Vermont Supreme Court adopts DCF's interpretation of the statute, finding no compelling indication of error in it. In re R.H., 189 Vt. 15, 14 A.3d 267 (2010).

2. Substantiation.

Decision to file a child-in-need-of-care-or-supervision (CHINS) petition simply does not prove or disprove that a child was in fact put at "risk of harm" by his or her parent. The Vermont Supreme Court rejects the conclusion that the Department for Children and Families' discretionary decision to file a petition to have a child declared as CHINS should determine whether a report of abuse or neglect has been "substantiated." In re M.E., 189 Vt. 114, 15 A.3d 112 (2010).

3. Applicability.

Definitions statute expressly states that the terms defined therein are for use in that particular subchapter, which deals with the reporting of child abuse for potential placement on the child protection registry. The statutes governing the registry process, found in chapter 49 of Title 33, have legislative goals, functions, and procedures completely different from those governing juvenile proceedings in family court now reorganized in chapter 51; thus, the Court declines to adopt, for purposes of juvenile proceedings, the definition of abuse set forth in that statute. In re M.K., 198 Vt. 233, 114 A.3d 107 (2015).

Cited. LaShay v. Department of Social & Rehabilitation Services, 160 Vt. 60, 625 A.2d 224 (1993); Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000); In re G.T., 170 Vt. 507, 758 A.2d 301 (2000); K.G. v. Department of Social & Rehabilitation Services, 171 Vt. 529, 758 A.2d 323 (mem.) (2000); State v. Baron, 176 Vt. 314, 848 A.2d 275 (2004); Wood ex rel. Eddy v. Eddy, 175 Vt. 608, 833 A.2d 1243 (mem.) (2003).

§ 4913. Reporting child abuse and neglect; remedial action.

  1. A mandated reporter is any:
    1. health care provider, including any:
      1. physician, surgeon, osteopath, chiropractor, or physician assistant licensed, certified, or registered under the provisions of Title 26;
      2. resident physician;
      3. intern;
      4. hospital administrator in any hospital in this State;
      5. registered nurse;
      6. licensed practical nurse;
      7. medical examiner;
      8. emergency medical personnel as defined in 24 V.S.A. § 2651(6) ;
      9. dentist;
      10. psychologist; and
      11. pharmacist;
    2. individual who is employed by a school district or an approved or recognized independent school, or who is contracted and paid by a school district or an approved or recognized independent school to provide student services, including any:
      1. school superintendent;
      2. headmaster of an approved or recognized independent school as defined in 16 V.S.A. § 11 ;
      3. school teacher;
      4. student teacher;
      5. school librarian;
      6. school principal; and
      7. school guidance counselor;
    3. child care worker;
    4. mental health professional;
    5. social worker;
    6. probation officer;
    7. employee, contractor, and grantee of the Agency of Human Services who have contact with clients;
    8. police officer;
    9. camp owner;
    10. camp administrator;
    11. camp counselor; or
    12. member of the clergy.
  2. As used in subsection (a) of this section, "camp" includes any residential or nonresidential recreational program.
  3. Any mandated reporter who reasonably suspects abuse or neglect of a child shall report in accordance with the provisions of section 4914 of this title within 24 hours of the time information regarding the suspected abuse or neglect was first received or observed.
    1. The Commissioner shall inform the person who made the report under subsection (a) of this section: (d) (1)  The Commissioner shall inform the person who made the report under subsection (a) of this section:
      1. whether the report was accepted as a valid allegation of abuse or neglect;
      2. whether an assessment was conducted and, if so, whether a need for services was found; and
      3. whether an investigation was conducted and, if so, whether it resulted in a substantiation.
    2. Upon request, the Commissioner shall provide relevant information contained in the case records concerning a person's report to a person who:
      1. made the report under subsection (a) of this section; and
      2. is engaged in an ongoing working relationship with the child or family who is the subject of the report.
    3. Any information disclosed under subdivision (2) of this subsection shall not be disseminated by the mandated reporter requesting the information. A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00.
    4. In providing information under subdivision (2) of this subsection, the Department may withhold:
      1. information that could compromise the safety of the reporter or the child or family who is the subject of the report; or
      2. specific details that could cause the child to experience significant mental or emotional stress.
  4. Any other concerned person not listed in subsection (a) of this section who has reasonable cause to believe that any child has been abused or neglected may report or cause a report to be made in accordance with the provisions of section 4914 of this title.
    1. Any person other than a person suspected of child abuse, who in good faith makes a report to the Department shall be immune from any civil or criminal liability that might otherwise be incurred or imposed as a result of making a report. (f) (1)  Any person other than a person suspected of child abuse, who in good faith makes a report to the Department shall be immune from any civil or criminal liability that might otherwise be incurred or imposed as a result of making a report.
    2. An employer or supervisor shall not discharge; demote; transfer; reduce pay, benefits, or work privileges; prepare a negative work performance evaluation; or take any other action detrimental to any employee because that employee filed a good faith report in accordance with the provisions of this subchapter. Any person making a report under this subchapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.
  5. The name of and any identifying information about either the person making the report or any person mentioned in the report shall be confidential unless:
    1. the person making the report specifically allows disclosure;
    2. a Human Services Board proceeding or a judicial proceeding results from the report;
    3. a court, after a hearing, finds probable cause to believe that the report was not made in good faith and orders the Department to make the name of the reporter available; or
    4. a review has been requested pursuant to section 4916a of this title, and the Department has determined that identifying information can be provided without compromising the safety of the reporter or the persons mentioned in the report.
    1. A person who violates subsection (c) of this section shall be fined not more than $500.00. (h) (1)  A person who violates subsection (c) of this section shall be fined not more than $500.00.
    2. A person who violates subsection (c) of this section with the intent to conceal abuse or neglect of a child shall be imprisoned not more than six months or fined not more than $1,000.00, or both.
    3. This section shall not be construed to prohibit a prosecution under any other provision of law.
  6. Except as provided in subsection (j) of this section, a person may not refuse to make a report required by this section on the grounds that making the report would violate a privilege or disclose a confidential communication.
  7. A member of the clergy shall not be required to make a report under this section if the report would be based upon information received in a communication that is:
    1. made to a member of the clergy acting in his or her capacity as spiritual advisor;
    2. intended by the parties to be confidential at the time the communication is made;
    3. intended by the communicant to be an act of contrition or a matter of conscience; and
    4. required to be confidential by religious law, doctrine, or tenet.
  8. When a member of the clergy receives information about abuse or neglect of a child in a manner other than as described in subsection (j) of this section, he or she is required to report on the basis of that information even though he or she may have also received a report of abuse or neglect about the same person or incident in the manner described in subsection (j) of this section.
  9. A mandated reporter as described in subdivision (a)(2) of this section shall not be deemed to have violated the requirements of this section solely on the basis of making condoms available to a secondary school student in accordance with 16 V.S.A. § 132 .

    Added 1981, No. 207 (Adj. Sess.), § 1, eff. April 25, 1982; amended 1983, No. 169 (Adj. Sess.), § 1; 1985, No. 208 (Adj. Sess.), § 19, eff. June 30, 1986; 1989, No. 295 (Adj. Sess.), § 3; 1993, No. 156 (Adj. Sess.), § 1; 2003, No. 43 , § 3, eff. May 27, 2003; 2005, No. 101 (Adj. Sess.), § 2; 2007, No. 77 , § 1, eff. June 7, 2007; 2007, No. 168 (Adj. Sess.), § 3, eff. Jan. 1, 2009; 2007, No. 172 (Adj. Sess.), § 19; 2009, No. 1 , § 45; 2011, No. 156 (Adj. Sess.), § 28, eff. May 16, 2012; 2011, No. 159 (Adj. Sess.), § 7; 2015, No. 60 , § 4; 2019, No. 157 (Adj. Sess.), § 6, eff. July 1, 2021; 2021, No. 20 , § 335.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 33 V.S.A. § 683(a) by 1989, No. 295 (Adj. Sess.), § 3, was incorporated in the text of this section.

2016. Corrected cross references in subsecs. (h), (i), and (k) in light of the addition of new subsecs. (b) and (c) by 2015, No. 60 , § 4.

- 2013. Subsection (a): Substituted "physician assistant" for "physician's assistant" in the first sentence in accordance with 2013, No. 34 , § 30a.

Revision note - In subsec. (a), substituted "section 4914 of this title" for "section 684 of this title" in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Editor's note. The text of subsec. (a) is based on the harmonization of two amendments. During the 2011 Adjourned Session, subsec. (a) was amended twice, by Act Nos. 156 and 159, resulting in two versions of subsec. (a). In order to reflect all of the changes enacted by the Legislature during the 2011 Adjourned Session, the text of Act Nos. 156 and 159 was merged to arrive at a single version of subsec. (a). The changes that each of the amendments made are described in the amendment notes set out below.

Amendments--2021. Subdiv. (g)(2): Substituted "from the report" for "therefrom."

Amendments--2019 (Adj. Sess.). Subsec. ( l ): Added.

Amendments--2015. Section amended generally.

Amendments--2011 (Adj. Sess.). Subsec. (a): Act No. 156 added "headmaster of an approved or recognized independent school as defined in 16 V.S.A. § 11", deleted "regularly" preceding "employed", twice added "or an approved or recognized independent school", and deleted "for five or more hours per week during the school year" preceding "mental health professional".

Act No. 159 inserted "student teacher" following "school teacher".

Amendments--2009. Subsec. (a): Inserted ", any employee, contractor, and grantee of the agency of human services who have contact with clients" preceding "police officer".

Amendments--2007 (Adj. Sess.). Section heading: Act No. 168 inserted "Reporting" at the beginning.

Subsec. (a): Act No. 168 inserted ", emergency medical personnel as defined in subdivision 2651(6) of Title 24" preceding "dentist" and "child care worker" preceding "school"; deleted "child care worker" following "librarian" and inserted "and any other individual who is regularly employed by a school district, or who is contracted and paid by a school district to provide student services for five or more hours per week during the school year" preceding "mental health".

Subsec. (a): Act No. 172 substituted "child care worker" for "day care worker" following "school librarian". Act 168 makes this change effective until January 1, 2009.

Subsec. (b): Amended generally by Act No. 168.

Subsec. (c): Added by Act No. 168.

Subsec. (d): Act No. 168 redesignated former subsec. (c) as present (d), added the subdiv. (1) designation; deleted "enumerated in subsection (a) or (b) of this section" following "person" and "of social and rehabilitation services" following "department" and added subdiv. (2).

Subsec. (e): Act No. 168 redesignated former subsec. (d) as present subsec. (e).

Subdiv. (e)(1): Act No. 168 deleted "or unless" following "disclosure".

Subdiv. (e)(2): Act No. 168 inserted "a human services board proceeding or" preceding "a judicial" and deleted "or unless" following "therefrom".

Subdiv. (e)(4): Added by Act No. 168.

Subsecs. (f) through (i): Act No. 168 redesignated former subsecs. (e), (f), (g) and (h) as present subsecs. (f), (g), (h) and (i), respectively.

Subsecs. (g) and (i): Act 168 substituted "(h)" for "(g)" following "subsection".

Amendments--2007. Subsec. (a): Substituted "child care worker" for "day care worker".

Subsec. (c): Substituted "subsection" for "subsections" following "enumerated in".

Subsec. (d): Added "and any identifying information about either" following "The name of", substituted "allows" for "requests" following "specifically" and added "of the reporter" preceding "available".

Amendments--2005 (Adj. Sess.). Subsec. (a): Inserted "pharmacist" following "psychologist".

Amendments--2003. Subsec. (a): Inserted "or member of the clergy" following "camp counselor".

Subsec. (e): Designated existing (e) as subdiv. (e), substituted "A person" for "Any person", added "of this section" and added subdivs. (2) and (3).

Subsecs. (f)-(h): Added.

Amendments--1993 (Adj. Sess.). Subsec. (a): Inserted "school superintendent" preceding "school teacher" in the first sentence.

Amendments--1989 (Adj. Sess.). Subsec. (a): Inserted "any other health care provider" preceding "school teacher", deleted "or" preceding "police officer", inserted "camp owner, camp administrator or camp counselor" thereafter and added "within 24 hours" following "this title" in the first sentence and added the second sentence.

Amendments--1985 (Adj. Sess.). Subsec. (a): Inserted "certified" following "physician's assistant licensed".

Amendments--1983 (Adj. Sess.). Subsec. (c): Inserted "other than a person suspected of child abuse" preceding "who", "to the department of social and rehabilitation services" preceding "shall", "any civil or criminal" preceding "liability" and deleted "for libel or slander" thereafter.

Effective date of subsec. ( l ). 2019, No. 157 (Adj. Sess.), § 11(a) provides that subsection ( l ) shall take effect on July 1, 2021.

Training in the reporting of suspected child abuse; agency of human services. 2009, No. 1 , § 46, provides: "The agency of human services shall develop protocols for determining which of its employees, contractors, and grantees are mandatory reporters for purposes of 33 V.S.A. § 4913. The agency of human services shall train its employees who are mandatory reporters pursuant to 33 V.S.A. § 4913 in the identification and reporting of suspected child abuse and neglect, including the assessment of risk of harm, and report to the senate and house committees on judiciary, the senate committee on health and welfare, the house committee on human services, and the house committee on corrections and institutions no later than September 15, 2009 regarding its efforts to ensure that its employees are properly trained."

Prior law. 33 V.S.A. § 683.

ANNOTATIONS

1. Failure to report.

Trooper was entitled to qualified immunity on a former school superintendent's malicious prosecution claim because reasonable officers confronted with the knowledge attributed to the trooper in the complaint could disagree as to whether there was probable cause to issue a citation for failure timely to report an allegation of child abuse. Tucker v. Decker, - F.3d - (2d Cir. Mar. 16, 2017).

Employee of Social and Rehabilitation Services was not entitled to immunity from suit as a matter of law from charge of breach of duty to report to Commissioner that minor placed in foster home was threatened with substantial risk of physical or mental injury; issue of fact existed as to whether employee had been informed that owner of home had previously requested sex with another minor. LaShay v. Department of Social & Rehabilitation Services, 160 Vt. 60, 625 A.2d 224 (1993).

Cited. Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985); Packard v. State, 147 Vt. 256, 514 A.2d 708 (1986); In re F.E.F., 156 Vt. 503, 594 A.2d 897 (1991); State v. Duffy, 158 Vt. 170, 605 A.2d 533 (1992); Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000); In re G.T., 170 Vt. 507, 758 A.2d 301 (2000).

§ 4914. Nature and content of report; to whom made.

A report shall be made orally or in writing to the Commissioner or designee. The Commissioner or designee shall request the reporter to follow the oral report with a written report, unless the reporter is anonymous. Reports shall contain the name and address or other contact information of the reporter as well as the names and addresses of the child and the parents or other persons responsible for the child's care, if known; the age of the child; the nature and extent of the child's injuries together with any evidence of previous abuse and neglect of the child or the child's siblings; and any other information that might be helpful in establishing the cause of the injuries or reasons for the neglect as well as in protecting the child and assisting the family. If a report of child abuse or neglect involves the acts or omissions of the Commissioner or employees of the Department, then the report shall be directed to the Secretary of Human Services who shall cause the report to be investigated by other appropriate Agency staff. If the report is substantiated, services shall be offered to the child and to his or her family or caretaker according to the requirements of section 4915b of this title.

Added 1981, No. 207 (Adj. Sess.), § 1, eff. April 25, 1982; amended 1989, No. 187 (Adj. Sess.), § 5; 1989, No. 295 (Adj. Sess.), § 4; 1995, No. 174 (Adj. Sess.), § 3; 2005, No. 174 (Adj. Sess.), § 120; 2007, No. 77 , § 1, eff. June 1, 2007; 2007, No. 168 (Adj. Sess.), § 4; 2015, No. 60 , § 4a.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 33 V.S.A. § 684 by 1989, No. 295 (Adj. Sess.), § 4, was incorporated in the text of this section.

Amendments--2015. Deleted "the reporter believes" following "and any other information that" in the third sentence.

Amendments--2007 (Adj. Sess.). Deleted "for children and families" following "commissioner" in the first and fourth sentences; substituted "the" for "that" preceding "department"; deleted "other than staff of the department for children and families" following "staff" in the fourth sentence; and substituted "4915b" for "4915" following "section" near the end of the fifth sentence.

Amendments--2007. Added "unless the reporter is anonymous" at the end of the second sentence; added "or other contact information" following "address" in the third sentence; deleted "staff of the department of disabilities, aging, and independent living or of corrections or" following "investigated" and added "agency" following "appropriate" in the fourth sentence; and added "to the child and to his or her family or caretaker" preceding "according" in the fifth sentence.

Amendments--2005 (Adj. Sess.). Substituted "for children and families" for "of social and rehabilitation services" following "commissioner" and "department"; "the report" for "such report" preceding "shall" and "department of disabilities, aging, and independent living" for "departments of developmental and mental health services".

Amendments--1995 (Adj. Sess.). Substituted "developmental and mental health services" for "mental health and mental retardation".

Amendments--1989 (Adj. Sess.). Act No. 187 inserted "and mental retardation" following "mental health" in the fourth sentence.

Act No. 295 deleted "his" preceding "designee" in the first and second sentences, substituted "the" for "his" preceding "parents" and "the child's" for "his" following "responsible for" and preceding "siblings" in the third sentence, and added "of this title" at the end of the fifth sentence.

Prior law. 33 V.S.A. § 684.

ANNOTATIONS

Cited. Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985); LaShay v. Department of Social & Rehabilitation Services, 160 Vt. 60, 625 A.2d 224 (1993); Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000).

§ 4915. Assessment and investigation.

  1. Upon receipt of a report of abuse or neglect, the Department shall promptly determine whether it constitutes an allegation of child abuse or neglect as defined in section 4912 of this title. The Department shall respond to reports of alleged neglect or abuse that occurred in Vermont and to out-of-state conduct when the child is a resident of or is present in Vermont.
  2. If the report is accepted as a valid allegation of abuse or neglect, the Department shall determine whether to conduct an assessment as provided for in section 4915a of this title or to conduct an investigation as provided for in section 4915b of this title. The Department shall begin either an assessment or an investigation within 72 hours after the receipt of a report made pursuant to section 4914 of this title, provided that it has sufficient information to proceed. The Commissioner may waive the 72-hour requirement only when necessary to locate the child who is the subject of the allegation or to ensure the safety of the child or social worker.
  3. The decision to conduct an assessment shall include consideration of the following factors:
    1. the nature of the conduct and the extent of the child's injury, if any;
    2. the accused person's prior history of child abuse or neglect, or lack thereof; and
    3. the accused person's willingness or lack thereof to accept responsibility for the conduct and cooperate in remediation.
  4. The Department shall conduct an investigation when an accepted report involves allegations indicating substantial child endangerment. For purposes of this section, "substantial child endangerment" includes conduct by an adult involving or resulting in sexual abuse, and conduct by a person responsible for a child's welfare involving or resulting in abandonment, child fatality, malicious punishment, or abuse or neglect that causes serious physical injury. The Department may conduct an investigation of any report.
  5. The Department shall begin an immediate investigation if, at any time during an assessment, it appears that an investigation is appropriate.
  6. The Department may collaborate with child protection, law enforcement, and other departments and agencies in Vermont and other jurisdictions to evaluate risk to a child and to determine the service needs of the child and family. The Department may enter into reciprocal agreements with other jurisdictions to further the purposes of this subchapter.
  7. The Department shall report to and receive assistance from appropriate law enforcement in the following circumstances:
    1. investigations of child sexual abuse by an alleged perpetrator 10 years of age or older;
    2. investigations of serious physical abuse or neglect requiring emergency medical care, resulting in death, or likely to result in criminal charges;
    3. situations potentially dangerous to the child or Department worker; and
    4. an incident in which a child suffers:
      1. serious bodily injury as defined in 13 V.S.A. § 1021 , by other than accidental means; and
      2. potential violations of:
        1. 13 V.S.A. § 2602 (lewd or lascivious conduct with child);
        2. 13 V.S.A. chapter 60 (human trafficking);
        3. 13 V.S.A. chapter 64 (sexual exploitation of children); and
        4. 13 V.S.A. chapter 72 (sexual assault).

          Added 1981, No. 207 (Adj. Sess.), § 1, eff. April 25, 1982; amended 1995, No. 178 (Adj. Sess.), § 300; 1999, No. 78 (Adj. Sess.), § 1; 2007, No. 77 , § 1, eff. June 7, 2007; 2007, No. 168 (Adj. Sess.), § 5; 2015, No. 60 , § 17.

History

Amendments--2015. Subsec. (g): Added.

Amendments--2007 (Adj. Sess.). Section amended generally.

Amendments--2007. Section amended generally.

Amendments--1999 (Adj. Sess.). Subsec. (a): Substituted "72 hours" for "seventy-two hours" and added "of this title" at the end of the sentence.

Subsec. (b): Added "all of the following" at the end of introductory paragraph.

Subdivs. (b)(1) and (b)(2): Made a minor change in punctuation.

Subdiv. (b)(3): Substituted "Determination of the" for "The", "any" for "the" preceding "abuse" and made a minor change in punctuation.

Subdiv. (b)(4): Substituted "Determination of the" for "The", inserted "alleged to be" following "the person" and made a minor change in punctuation.

Subdiv. (b)(5): Amended generally.

Subdiv. (b)(6): Made a minor change in punctuation.

Subdiv. (b)(7): Substituted "Consideration of the" for "The", inserted "alleged to be" following "the person", and deleted "and" following "neglect".

Subsec. (d): Deleted "his" preceding "designee" in wherever it appeared.

Amendments--1995 (Adj. Sess.) Subsec. (c): Substituted "may, to the extent that it is reasonable" for "shall" following "commissioner" and "the child's family" for "his family" preceding "in accordance".

Prior law. 33 V.S.A. § 685.

ANNOTATIONS

Analysis

1. Duty.

Vermont law did not clearly require a more thorough investigation of abuse than was in fact conducted; social workers thus had a reasonable basis to believe that their abuse investigation was consistent with family's rights under State law at the time, and social workers were therefore entitled to qualified immunity. Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000).

Where evidence could not support a conclusion by the fact-finder that social worker defendants had not violated their statutory duties under this section, summary judgment for defendants, on ground that defendants were protected by qualified immunity as a matter of law, was inappropriate. Sabia v. Neville, 165 Vt. 515, 687 A.2d 469 (1996).

It is beyond dispute that § 4911 of this title and this section create a duty on the part of the Department of Social and Rehabilitation Services to assist a particular class of persons to which plaintiffs belong (child abuse victims) and to prevent the type of harm suffered by plaintiffs (sexual abuse by their stepfather). Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995).

This section does not require the Department of Social and Rehabilitation Services (SRS) in all instances to remove abused or neglected children from their home, but it does require the Department to thoroughly investigate charges of abuse and to cause assistance to be provided pursuant to a written plan of treatment when an investigation produces evidence of abuse or neglect. Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995).

2. Interview.

Social worker investigating a claim of child abuse is authorized to interview a possible victim outside presence of a disinterested adult only with approval of the child's parents, guardian, or custodian. Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000).

Qualified immunity shielded social workers from liability in connection with their alleged violation of this section, where it was not clearly established under Vermont law that they needed permission from both parents, as opposed to just one, in order to proceed with interviews of possible child abuse victim. Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000).

This section requires the presence of a disinterested adult only when the interview of a child takes place without the approval of the child's parents, guardian, or custodian. Because the child's mother gave permission for the child to be interviewed, the father could not claim a violation of this section. Wilkinson ex rel. Wilkinson v. Russell, 973 F. Supp. 437 (D. Vt. 1997), aff'd, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000).

Cited. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989); Murray v. White, 155 Vt. 621, 587 A.2d 975 (1991); In re F.E.F., 156 Vt. 503, 594 A.2d 897 (1991); State v. Duffy, 158 Vt. 170, 605 A.2d 533 (1992); LaShay v. Department of Social & Rehabilitation Services, 160 Vt. 60, 625 A.2d 224 (1993); Earle v. State, 180 Vt. 284, 910 A.2d 841 (September 1, 2006).

§ 4915a. Procedures for assessment.

  1. An assessment, to the extent that is reasonable under the facts and circumstances presented by the particular valid allegation of child abuse or neglect, shall include the following:
    1. An interview with the child's parent, guardian, foster parent, or any other adult residing in the child's home who serves in a parental role. The interview shall focus on ensuring the immediate safety of the child and mitigating the future risk of harm to the child in the home environment.
    2. An evaluation of the safety of the subject child and any other children living in the same home environment. The evaluation may include an interview with or observation of the child or children. Such interviews shall occur with the permission of the child's parent, guardian, or custodian.
    3. In collaboration with the family, identification of family strengths, resources, and service needs, and the development of a plan of services that reduces the risk of harm and improves or restores family well-being.
  2. The assessment shall be completed within 45 days. Upon written justification by the Department, the assessment may be extended, not to exceed a total of 60 days.
  3. Families have the option of declining the services offered as a result of the assessment. If the family declines the services, the case shall be closed unless the Department determines that sufficient cause exists to begin an investigation or to request the State's Attorney to file a petition pursuant to chapters 51 and 53 of this title. In no instance shall a case be investigated solely because the family declines services.
  4. When an assessment case is closed, there shall be no finding of abuse or neglect and no indication of the intervention shall be placed in the Registry. However, the Department shall document the outcome of the assessment.

    Added 2007, No. 168 (Adj. Sess.), § 6; amended 2013, No. 131 (Adj. Sess.), § 77, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Subsec. (c): Substituted "chapters 51 and 53" for "chapter 55" following "pursuant to".

§ 4915b. Procedures for investigation.

  1. An investigation, to the extent that it is reasonable under the facts and circumstances presented by the particular allegation of child abuse, shall include all of the following:
    1. A visit to the child's place of residence or place of custody and to the location of the alleged abuse or neglect.
    2. An interview with or observation of the child reportedly having been abused or neglected. If the investigator elects to interview the child, that interview may take place without the approval of the child's parents, guardian, or custodian, provided that it takes place in the presence of a disinterested adult who may be, but shall not be limited to being, a teacher, a member of the clergy, a child care provider regulated by the Department, or a nurse.
    3. Determination of the nature, extent, and cause of any abuse or neglect.
    4. Determination of the identity of the person alleged to be responsible for such abuse or neglect.
      1. The identity, by name, of any other children living in the same home environment as the subject child. The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection. (5) (A) The identity, by name, of any other children living in the same home environment as the subject child. The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.
      2. The identity, by name, of any other children who may be at risk if the abuse was alleged to have been committed by someone who is not a member of the subject child's household. The investigator shall consider the physical and emotional condition of those children and may interview them, unless the child is the person who is alleged to be responsible for such abuse or neglect, in accordance with the provisions of subdivision (2) of this subsection.
    5. A determination of the immediate and long-term risk to each child if that child remains in the existing home or other environment.
    6. Consideration of the environment and the relationship of any children therein to the person alleged to be responsible for the suspected abuse or neglect.
    7. All other data deemed pertinent.
  2. For cases investigated and substantiated by the Department, the Commissioner shall, to the extent that it is reasonable, provide assistance to the child and the child's family. For cases investigated but not substantiated by the Department, the Commissioner may, to the extent that it is reasonable, provide assistance to the child and the child's family. Nothing contained in this section or section 4915a of this title shall be deemed to create a private right of action.
  3. The Commissioner, designee, or any person required to report under section 4913 of this title or any other person performing an investigation may take or cause to be taken photographs of trauma visible on a child who is the subject of a report. The Commissioner or designee may seek consultation with a physician. If it is indicated appropriate by the physician, the Commissioner or designee may cause the child who is subject of a report to undergo a radiological examination without the consent of the child's parent or guardian.
  4. Services may be provided to the child's immediate family whether or not the child remains in the home.
  5. [Repealed.]
  6. The Department shall not substantiate cases in which neglect is caused solely by the lack of financial resources of the parent or guardian.

    Added 2007, No. 168 (Adj. Sess.), § 7; amended 2015, No. 60 , § 16.

History

Amendments--2015. Subsec. (e): Repealed.

§ 4916. Child Protection Registry.

    1. The Commissioner shall maintain a Child Protection Registry that shall contain a record of all investigations that have resulted in a substantiated report on or after January 1, 1992. Except as provided in subdivision (2) of this subsection, prior to placement of a substantiated report on the Registry, the Commissioner shall comply with the procedures set forth in section 4916a of this title. (a) (1)  The Commissioner shall maintain a Child Protection Registry that shall contain a record of all investigations that have resulted in a substantiated report on or after January 1, 1992. Except as provided in subdivision (2) of this subsection, prior to placement of a substantiated report on the Registry, the Commissioner shall comply with the procedures set forth in section 4916a of this title.
    2. In cases involving sexual abuse or serious physical abuse of a child, the Commissioner in his or her sole judgment may list a substantiated report on the Registry pending any administrative review after:
      1. reviewing the investigation file; and
      2. making written findings in consideration of:
        1. the nature and seriousness of the alleged behavior; and
        2. the person's continuing access to children.
    3. A person alleged to have abused or neglected a child and whose name has been placed on the Registry in accordance with subdivision (2) of this subsection shall be notified of the Registry entry, provided with the Commissioner's findings, and advised of the right to seek an administrative review in accordance with section 4916a of this title.
    4. If the name of a person has been placed on the Registry in accordance with subdivision (2) of this subsection, it shall be removed from the Registry if the substantiation is rejected after an administrative review.
  1. A Registry record means an entry in the Child Protection Registry that consists of the name of an individual substantiated for child abuse or neglect, the date of the finding, the nature of the finding, and at least one other personal identifier, other than a name, listed in order to avoid the possibility of misidentification.
  2. The Commissioner shall adopt rules to permit use of the Registry records as authorized by this subchapter while preserving confidentiality of the Registry and other Department records related to abuse and neglect.
  3. For all substantiated reports of child abuse or neglect made on or after the date the final rules are adopted, the Commissioner shall create a Registry record that reflects a designated child protection level related to the risk of future harm to children. This system of child protection levels shall be based upon an evaluation of the risk the person responsible for the abuse or neglect poses to the safety of children. The risk evaluation shall include consideration of the following factors:
    1. the nature of the conduct and the extent of the child's injury, if any;
    2. the person's prior history of child abuse or neglect as either a victim or perpetrator;
    3. the person's response to the investigation and willingness to engage in recommended services; and
    4. the person's age and developmental maturity.
  4. The Commissioner shall develop rules for the implementation of a system of Child Protection Registry levels for substantiated cases. The rules shall address:
    1. the length of time a person's name appears on the Registry;
    2. when and how names are expunged from the Registry;
    3. whether the person is a juvenile or an adult;
    4. whether the person was charged with or convicted of a criminal offense arising out of the incident of abuse or neglect; and
    5. whether a Family Division of the Superior Court has made any findings against the person.
  5. [Repealed.]

    Added 1981, No. 207 (Adj. Sess.), § 1, eff. April 25, 1982; amended 1989, No. 295 (Adj. Sess.), § 5; 1991, No. 159 (Adj. Sess.), § 3; 2007, No. 77 , § 1, eff. Sept. 1, 2007; 2007, No. 168 (Adj. Sess.), § 8; 2007, No. 172 (Adj. Sess.), § 20; 2009, No. 154 (Adj. Sess.), § 238.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 33 V.S.A. § 686 by 1989, No. 295 (Adj. Sess.), § 5, was incorporated in the text of this section.

2008. Act No. 172 purported to amend subdiv. (f)(1), however the subsection had been previously repealed by Act No. 168.

Amendments--2009 (Adj. Sess.) Subdiv. (e)(5): Substituted "family division of the superior court" for "family court".

Amendments--2007 (Adj. Sess.). Section heading: Act No. 168 substituted "protection" for "abuse and neglect" following "Child" and deleted "records of abuse and neglect" following "registry".

Subdiv. (a)(1): Act No. 168 substituted "protection" for "abuse and neglect".

Subdiv. (a)(3): Act No. 168 inserted "whose name has been" preceding "placed".

Subdiv. (a)(4): Added by Act No. 168.

Subsec. (b): Act No. 168 substituted "protection" for "abuse and neglect".

Subsecs. (d) and (e): Amended generally by Act No. 168.

Subsec. (f): Deleted by Act No. 168.

Amendments--2007. Section amended generally.

Amendments--1991 (Adj. Sess.). Subsec. (d): Inserted "except as provided in section 4919 of this title" following "subsection" in the third sentence.

Amendments--1989 (Adj. Sess.). Section amended generally.

Prior law. 33 V.S.A. § 686.

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. chapter 25.

ANNOTATIONS

Analysis

1. Construction.

Department for Children and Families (DCF) looks to the degree of misconduct involved in the action of the parent or caretaker and reserves child protection registry inclusion in single incident cases for misconduct that is egregious - that is, outrageously bad or reprehensible. The DCF's approach is consistent with the statute which requires that the risk of harm to the child be "substantial" and create "significant" danger, and the Vermont Supreme Court adopts DCF's interpretation of the statute, finding no compelling indication of error in it. In re R.H., 189 Vt. 15, 14 A.3d 267 (2010).

Evidence required to support the listing of a substantiated child abuse investigation does not require proof that the act was committed to satisfy sexual desires of either the perpetrator or the victim as required by 13 V.S.A. § 2602, lewd or lascivious conduct with a child. Passion v. Department of Social & Rehabilitation Services, 166 Vt. 596, 689 A.2d 459 (mem.) (1997).

That the sexual abuse registry statute was seemingly contradictory to other public policies of the State, evidenced in statutes like § 5501 of this title, which seek to remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior, was not sufficient to overcome the Legislature's intent to treat child sexual abuse as a special area of concern warranting different treatment. In re Selivonik, 164 Vt. 383, 670 A.2d 831 (1995).

2. Evidentiary privilege.

This section does not exhibit an intent to create an evidentiary privilege as to information within the possession of the Department of Social and Rehabilitation Services. In re F.E.F., 156 Vt. 503, 594 A.2d 897 (1991).

3. Effect of disclosure.

Since it was reasonable for social services director to perceive information request from Connecticut investigator as a court order, it was likewise reasonable for director to believe that her communications with investigator did not contravene clear requirements of subdivision (d) of this section. Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000).

A child welfare director's remarks regarding alleged child sexual abuse to an out-of-state counterpart were privileged under the doctrines of judicial immunity and state qualified immunity. The director's remarks, although used in a closed court proceeding, were not published as required for an action in defamation. Wilkinson ex rel. Wilkinson v. Russell, 973 F. Supp. 437 (D. Vt. 1997), aff'd, 182 F.3d 89 (2d Cir. 1999), cert. denied, 528 U.S. 1155, 120 S. Ct. 1160, 145 L. Ed. 2d 1072 (2000).

4. Expungement of records.

Based on collateral estoppel, the Human Services Board properly denied a mother an evidentiary hearing to expunge her name from the child abuse registry. A family court's determination that a child was in need of care or supervision, based upon the mother's stipulation, precluded relitigation of whether the child had been nutritionally neglected. In re P.J., 185 Vt. 606, 969 A.2d 133 (mem.) (2009).

Order of the Human Services Board expunging mother's name from the child-abuse registry was not reversed where the facts did not make out child abuse as a matter of law. K.G. v. Department of Social & Rehabilitation Services, 171 Vt. 529, 758 A.2d 323 (mem.) (2000).

Father's name was required to be expunged from state child-abuse registry, where quality of hearsay evidence militated against assigning any accuracy or reliability to statements of child implicating her father. In re C.M., 168 Vt. 389, 721 A.2d 1176 (1998).

Plain language of hearsay exception contained in V.R.E. 804a indicated that Legislature intended it to apply to any civil, criminal, or administrative proceeding in which statements concerning child sexual abuse are offered, and therefore this provision, rather than Human Services Board's more relaxed hearsay rule, governed admissibility of child hearsay statements in hearings for expungement of names from State child-abuse registry. In re C.M., 168 Vt. 389, 721 A.2d 1176 (1998).

Petitioner could not raise the issue of a violation of the provision of this section requiring the destruction of records, where he failed to object to testimony regarding an incident of prior sexual abuse on that basis at the hearing before the Human Services Board. Passion v. Department of Social & Rehabilitation Services, 166 Vt. 596, 689 A.2d 459 (mem.) (1997).

When conducting hearings regarding the expungement of investigation records held by the Department of Social and Rehabilitation Services, the Human Services Board receives evidence and reviews the Department's decision de novo. In re Bushey-Combs, 160 Vt. 326, 628 A.2d 541 (1993).

Order by Human Services Board to expunge report of sexual abuse within registry of Department of Social and Rehabilitation Services was not error where Department failed to meet its burden to show why record of abuse should not be expunged. In re Bushey-Combs, 160 Vt. 326, 628 A.2d 541 (1993).

5. Extent of expungement.

The obvious purpose of subsection (g)'s concluding phrase, "and the name of the person about whom the report was made," which was added by the Legislature in 1990, was to prevent loss of the perpetrator's name when the abused child's name was expunged from the registry. In re Selivonik, 164 Vt. 383, 670 A.2d 831 (1995).

Although petitioner argued that Legislature intended to allow expungement of child perpetrators when they became adults, in the context of a statute whose main purpose is the prevention of child abuse, the more persuasive interpretation is that the names of perpetrators were to be maintained regardless of age. In re Selivonik, 164 Vt. 383, 670 A.2d 831 (1995).

6. Standard of proof.

A person included in the sexual abuse registry has the right at any time to petition for expungement and is entitled to a fair hearing conducted under the preponderance standard; a higher standard at the investigatory stage is not necessary to meet due process concerns because of the availability of such a hearing at any time after inclusion in the registry. In re Selivonik, 164 Vt. 383, 670 A.2d 831 (1995).

7. Case files.

A court's order to the Commissioner of Social and Rehabilitation Services to disclose case files to the State's Attorney was not an abuse of discretion insofar as the ruling applied to criminal cases before the court at the time. State v. Ross, 166 Vt. 630, 699 A.2d 47 (mem.) (1997).

8. Findings of fact.

In a child-abuse-and-neglect registry case, remand was required because the Human Services Board failed to meet its obligation to issue written findings of fact. The Board's mere recitation of the evidence did not suffice. In re M.G., 189 Vt. 72, 13 A.3d 1084 (2010).

9. Particular cases.

In reversing a decision including a mother in the child protection registry on the ground that there had been a risk of harm to the child but that no purpose would be served by placing the mother's name in the registry, the Human Services Board failed to follow the plain language of the statute. It had no discretion to conflate the two distinct statutory procedures of substantiation and expungement, and it erred in considering whether the mother was likely to commit similar acts of negligence in the future. In re R.H., 189 Vt. 15, 14 A.3d 267 (2010).

Cited. In re R.B., 152 Vt. 415, 566 A.2d 1310 (1989), cert. denied, Appleby v. Young, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990); State v. Curtis, 157 Vt. 275, 597 A.2d 770 (1991).

§ 4916a. Challenging placement on the Registry.

  1. If an investigation conducted in accordance with section 4915b of this title results in a determination that a report of child abuse or neglect should be substantiated, the Department shall notify the person alleged to have abused or neglected a child of the following:
    1. the nature of the substantiation decision, and that the Department intends to enter the record of the substantiation into the Registry;
    2. who has access to Registry information and under what circumstances;
    3. the implications of having one's name placed on the Registry as it applies to employment, licensure, and registration;
    4. the right to request a review of the substantiation determination by an administrative reviewer, the time in which the request for review shall be made, and the consequences of not seeking a review; and
    5. the right to receive a copy of the Commissioner's written findings made in accordance with subdivision 4916(a)(2) of this title if applicable.
  2. Under this section, notice by the Department to a person alleged to have abused or neglected a child shall be by first-class mail sent to the person's last known address.
    1. A person alleged to have abused or neglected a child may seek an administrative review of the Department's intention to place the person's name on the Registry by notifying the Department within 14 days of the date the Department mailed notice of the right to review in accordance with subsections (a) and (b) of this section. The Commissioner may grant an extension past the 14-day period for good cause, not to exceed 28 days after the Department has mailed notice of the right to review. (c) (1)  A person alleged to have abused or neglected a child may seek an administrative review of the Department's intention to place the person's name on the Registry by notifying the Department within 14 days of the date the Department mailed notice of the right to review in accordance with subsections (a) and (b) of this section. The Commissioner may grant an extension past the 14-day period for good cause, not to exceed 28 days after the Department has mailed notice of the right to review.
    2. The administrative review may be stayed upon request of the person alleged to have committed abuse or neglect if there is a related case pending in the Criminal or Family Division of the Superior Court that arose out of the same incident of abuse or neglect for which the person was substantiated. During the period the review is stayed, the person's name shall be placed on the Registry. Upon resolution of the Superior Court criminal or family case, the person may exercise his or her right to review under this section by notifying the Department in writing within 30 days after the related court case, including any appeals, has been fully adjudicated. If the person fails to notify the Department within 30 days, the Department's decision shall become final and no further review under this subsection is required.
  3. The Department shall hold an administrative review conference within 35 days of receipt of the request for review. At least 10 days prior to the administrative review conference, the Department shall provide to the person requesting review a copy of the redacted investigation file, notice of time and place of the conference, and conference procedures, including information that may be submitted and mechanisms for providing information. There shall be no subpoena power to compel witnesses to attend a Registry review conference. The Department shall also provide to the person those redacted investigation files that relate to prior investigations that the Department has relied upon to make its substantiation determination in the case in which a review has been requested.
  4. At the administrative review conference, the person who requested the review shall be provided with the opportunity to present documentary evidence or other information that supports his or her position and provides information to the reviewer in making the most accurate decision regarding the allegation. The Department shall have the burden of proving that it has accurately and reliably concluded that a reasonable person would believe that the child has been abused or neglected by that person. Upon the person's request, the conference may be held by teleconference.
  5. The Department shall establish an administrative case review unit within the Department and contract for the services of administrative reviewers. An administrative reviewer shall be a neutral and independent arbiter who has no prior involvement in the original investigation of the allegation.
  6. Within seven days of the conference, the administrative reviewer shall:
    1. reject the Department's substantiation determination;
    2. accept the Department's substantiation; or
    3. place the substantiation determination on hold and direct the Department to further investigate the case based upon recommendations of the reviewer.
  7. If the administrative reviewer accepts the Department's substantiation determination, a Registry record shall be made immediately. If the reviewer rejects the Department's substantiation determination, no Registry record shall be made.
  8. Within seven days of the decision to reject or accept or to place the substantiation on hold in accordance with subsection (g) of this section, the administrative reviewer shall provide notice to the person of his or her decision. If the administrative reviewer accepts the Department's substantiation, the notice shall advise the person of the right to appeal the administrative reviewer's decision to the human services board in accordance with section 4916b of this title.
  9. Persons whose names were placed on the Registry on or after January 1, 1992 but prior to September 1, 2007 shall be entitled to an opportunity to seek an administrative review to challenge the substantiation.
  10. If no administrative review is requested, the Department's decision in the case shall be final, and the person shall have no further right of review under this section. The Commissioner may grant a waiver and permit such a review upon good cause shown. Good cause may include an acquittal or dismissal of a criminal charge arising from the incident of abuse or neglect.
  11. In exceptional circumstances, the Commissioner, in his or her sole and nondelegable discretion, may reconsider any decision made by a reviewer. A Commissioner's decision that creates a Registry record may be appealed to the Human Services Board in accordance with section 4916b of this title.

    Added 2007, No. 77 , § 1, eff. Sept. 1, 2007; amended 2007, No. 168 (Adj. Sess.), § 9, eff. Sept. 1, 2008; 2009, No. 154 (Adj. Sess.), § 221; 2015, No. 92 (Adj. Sess.), § 1, eff. May 10, 2016.

History

Amendments--2015 (Adj. Sess.). Subdiv. (c)(2): Inserted "by notifying the Department in writing within 30 days after the related court case, including any appeals, has been fully adjudicated" following "under this section" and added the third sentence.

Subsec. (d): Substituted "information" for "testimony" at the end of the second sentence and added the present third sentence.

Amendments--2009 (Adj. Sess.) Subdiv. (c)(2): Deleted "criminal or family court" preceding "case pending in" and inserted "the criminal or family division of the superior" thereafter in the first sentence and inserted "superior court" preceding "criminal" and deleted "court" preceding "case" in the third sentence.

Amendments--2007 (Adj. Sess.). Subsec. (a): Substituted "4915b" for "4915" following "section".

Subsec. (c): Added the subdiv. (1) designation and added the second sentence in that subdivision and subdiv. (2).

Subsec. (d): Substituted "35" for "14" preceding "days" in the first sentence and "ten" for "seven" preceding "days" in the second sentence.

Subsec. (h): Added the second sentence.

Subsec. (j): Substituted "September" for "July" following "prior to" and deleted "pursuant to this section" following "substantiation".

Subsec. (k): Added the third sentence.

Subsec. ( l ): Added.

ANNOTATIONS

Analysis

1. Administrative review.

Human Services Board properly held that it lacked jurisdiction over an appeal from a substantiation of child abuse. The appeal, which was filed more than 10 months after notice of the substantiation, was untimely under the statute governing administrative review in such cases. In re Beer, 187 Vt. 641, 996 A.2d 225 (mem.) (2010).

Deadlines listed in the statute dealing with challenging placement on the child abuse registry are solely procedural and therefore fall under a general exception to the statute that deals with an amendment's retroactive effects on substantive rights. Furthermore, the deadlines in the registry statute were not in fact being applied retroactively, since petitioner had no appellate rights in the case until the date the charge was substantiated at which point the amendment adding the deadlines was already in effect. In re Beer, 187 Vt. 641, 996 A.2d 225 (mem.) (2010).

2. Constitutionality.

When petitioner failed to take the steps necessary to secure a merits hearing on a substantiation of child abuse, there was no due process violation, since petitioner was plainly provided adequate notice of the agency's decision and informed of his right to appeal. There was no due process violation when a board simply enforced its properly noticed filing deadlines, as occurred here. In re Beer, 187 Vt. 641, 996 A.2d 225 (mem.) (2010).

3. Disclosure of documents.

Because petitioner failed to file a timely appeal of a substantiation of child abuse, the Human Services Board properly found that it lacked jurisdiction to hold an administrative review conference regarding the merits of the case; thus, the Board was not required to disclose any documents to petitioner. The statute governing challenging placement on the child abuse registry required the disclosure of redacted documents only when an administrative review conference was going to take place. In re Beer, 187 Vt. 641, 996 A.2d 225 (mem.) (2010).

4. Substantiation.

On petitioner's challenge to the inclusion of her name on the Child Protection Registry, the evidence did not support the Human Services Board's order upholding a 2004 substantiation for presenting a risk of harm to a child. An anonymous report that petitioner was abusing drugs in 2004 could not alone support the substantiation; the 2004 substantiation determination could not rest on petitioner's 2011 admissions; and without any evidence that the child was actually at risk, petitioner could not be found to have failed to mitigate a risk to her child by failing to comply with the Department for Children and Families' recommendations. In re K.R., 199 Vt. 191, 121 A.3d 1207 (2015).

Although the statutory scheme has changed since 1993, the burden remains with the Department for Children and Families (DCF) to justify its substantiation decision in the fair hearing before the Human Services Board. It remains true, therefore, that DCF's substantiation determinations are significantly different in nature from those of an adjudicative body. In re R.H., 189 Vt. 15, 14 A.3d 267 (2010).

§ 4916b. Human Services Board hearing.

  1. Within 30 days after the date on which the administrative reviewer mailed notice of placement of a report on the Registry, the person who is the subject of the substantiation may apply in writing to the Human Services Board for relief. The Board shall hold a fair hearing pursuant to 3 V.S.A. § 3091 . When the Department receives notice of the appeal, it shall make note in the Registry record that the substantiation has been appealed to the Board.
    1. The Board shall hold a hearing within 60 days after the receipt of the request for a hearing and shall issue a decision within 30 days after the hearing. (b) (1)  The Board shall hold a hearing within 60 days after the receipt of the request for a hearing and shall issue a decision within 30 days after the hearing.
    2. Priority shall be given to appeals in which there are immediate employment consequences for the person appealing the decision.
      1. Article VIII of the Vermont Rules of Evidence (Hearsay) shall not apply to any hearing held pursuant to this subchapter with respect to statements made by a child 12 years of age or under who is alleged to have been abused or neglected and the child shall not be required to testify or give evidence at any hearing held under this subchapter. Evidence shall be admissible if the time, content, and circumstances of the statements provide substantial indicia of trustworthiness. (3) (A) Article VIII of the Vermont Rules of Evidence (Hearsay) shall not apply to any hearing held pursuant to this subchapter with respect to statements made by a child 12 years of age or under who is alleged to have been abused or neglected and the child shall not be required to testify or give evidence at any hearing held under this subchapter. Evidence shall be admissible if the time, content, and circumstances of the statements provide substantial indicia of trustworthiness.
      2. Article VIII of the Vermont Rules of Evidence (Hearsay) shall not apply to any hearing held pursuant to this subchapter with respect to statements made by a child who is at least 13 years of age and under 16 years of age who is alleged to have been abused or neglected and the child shall not be required to testify or give evidence at any hearing held under this subchapter in either of the following circumstances:
        1. The hearing officer determines, based on a preponderance of the evidence, that requiring the child to testify will present a substantial risk of trauma to the child. Evidence of trauma need not be offered by an expert and may be offered by any adult with an ongoing significant relationship with the child. Evidence shall be admissible if the time, content, and circumstances of the statements provide substantial indicia of trustworthiness.
        2. The hearing officer determines that the child is physically unavailable to testify or the Department has made diligent efforts to locate the child and was unsuccessful. Evidence shall be admissible if the time, content, and circumstances of the statements provide substantial indicia of trustworthiness.
    3. Convictions and adjudications that arose out of the same incident of abuse or neglect for which the person was substantiated, whether by verdict, by judgment, or by a plea of any type, including a plea resulting in a deferred sentence, shall be competent evidence in a hearing held under this subchapter.
  2. A hearing may be stayed upon request of the petitioner if there is a related case pending in the Criminal or Family Division of the Superior Court that arose out of the same incident of abuse or neglect for which the person was substantiated.
  3. If no review by the Board is requested, the Department's decision in the case shall be final, and the person shall have no further right for review under this section. The Board may grant a waiver and permit such a review upon good cause shown.

    Added 2007, No. 77 , § 1, eff. Sept. 1, 2007; amended 2007, No. 168 (Adj. Sess.), § 10; 2009, No. 1 , § 29; 2009, No. 1 54 (Adj. Sess.), § 222; 2017, No. 147 (Adj. Sess.), § 1.

History

Amendments--2017 (Adj. Sess.). Substituted "after" for "of" following "days" wherever it appeared throughout the section; rewrote subdiv. (b)(3), substituted "that" for "which" preceding "arose" in subdiv. (b)(4) and in subsec. (c).

Amendments--2009 (Adj. Sess.) Subsec. (c): Deleted "criminal or family court" preceding "case pending in" and inserted "the criminal or family division of the superior" thereafter.

Amendments--2009. Subdivs. (b)(3) and (4): Added.

Amendments--2007 (Adj. Sess.). Subsec. (c): Inserted "criminal or family court" following "related" and "which arose out of the same incident of abuse or neglect for which the person was substantiated" following "court".

ANNOTATIONS

Analysis

1. Hearing.

Human Services Board's statutory authority to hold a fair hearing has not changed, and the Board remains empowered to engage in de novo review. These powers would be meaningless if the Board were limited to determining only whether the Department for Children and Families (DCF) had sufficient evidence to support its conclusions; where the Legislature intended that the Board's review of DCF's decisions be limited, moreover, it has stated so explicitly. In re R.H., 189 Vt. 15, 14 A.3d 267 (2010).

2. Appeals.

Good cause standard for untimely appeals from placement on the Child Protection Registry to the Human Services Board is applied when determining whether the offender at issue had a valid reason for failing to meet the appeals deadline; in other words, it does not pertain to the substance of the underlying case but rather to the reasons why the offender did not meet the appeals deadline. In re M.S., 205 Vt. 204, 172 A.3d 786 (July 21, 2017).

Petitioner, who sought to challenge his placement on the Child Protection Registry, did not show good cause for not timely appealing the substantiation of child abuse to the Human Services Board, as petitioner's failure to timely appeal was due to factors entirely within his control. In re M.S., 205 Vt. 204, 172 A.3d 786 (July 21, 2017).

3. Evidence.

Although the statute governing Human Services Board hearings designates the family court's adjudication "competent evidence" in a substantiation proceeding, it does nothing to circumvent the clear requirement in the statute governing records in juvenile judicial proceedings that the Board receive that evidence only when its release has been authorized by a designation order from the family court. In re Appeal of H.H., - Vt. - , 251 A.3d 560 (Dec. 31, 2020).

Need-to-know designation from the family court in a child-in-need-of-care-or-supervision (CHINS) proceeding was required before the Human Services Board in a substantiation proceeding could inspect the contents of the juvenile files in question. Thus, because this essential step had been bypassed, the facts stipulated to in the CHINS proceeding were not properly considered by the Board in granting summary judgment based on collateral estoppel. In re Appeal of H.H., - Vt. - , 251 A.3d 560 (Dec. 31, 2020).

§ 4916c. Petition for expungement from the Registry.

    1. Except as provided in this subdivision, a person whose name has been placed on the Registry prior to July 1, 2009 and has been listed on the Registry for at least three years may file a written request with the Commissioner, seeking a review for the purpose of expunging an individual Registry record. A person whose name has been placed on the Registry on or after July 1, 2009 and has been listed on the Registry for at least seven years may file a written request with the Commissioner seeking a review for the purpose of expunging an individual Registry record. The Commissioner shall grant a review upon request. (a) (1)  Except as provided in this subdivision, a person whose name has been placed on the Registry prior to July 1, 2009 and has been listed on the Registry for at least three years may file a written request with the Commissioner, seeking a review for the purpose of expunging an individual Registry record. A person whose name has been placed on the Registry on or after July 1, 2009 and has been listed on the Registry for at least seven years may file a written request with the Commissioner seeking a review for the purpose of expunging an individual Registry record. The Commissioner shall grant a review upon request.
    2. A person who is required to register as a sex offender on the State's Sex Offender Registry shall not be eligible to petition for expungement of his or her Registry record until the person is no longer subject to Sex Offender Registry requirements.
    1. The person shall have the burden of proving that a reasonable person would believe that he or she no longer presents a risk to the safety or well-being of children. (b) (1)  The person shall have the burden of proving that a reasonable person would believe that he or she no longer presents a risk to the safety or well-being of children.
    2. The Commissioner shall consider the following factors in making his or her determination:
      1. the nature of the substantiation that resulted in the person's name being placed on the Registry;
      2. the number of substantiations;
      3. the amount of time that has elapsed since the substantiation;
      4. the circumstances of the substantiation that would indicate whether a similar incident would be likely to occur;
      5. any activities that would reflect upon the person's changed behavior or circumstances, such as therapy, employment, or education;
      6. references that attest to the person's good moral character; and
      7. any other information that the Commissioner deems relevant.
    3. The Commissioner may deny a petition for expungement based solely on subdivision (2)(A) or (2)(B) of this subsection.
  1. At the review, the person who requested the review shall be provided with the opportunity to present any evidence or other information, including witnesses, that supports his or her request for expungement. Upon the person's request, the review may be held by teleconference.
  2. A person may seek a review under this section no more than once every 36 months.
  3. Within 30 days of the date on which the Commissioner mailed notice of the decision pursuant to this section, a person may appeal the decision to the Human Services Board. The person shall be prohibited from challenging his or her substantiation at such hearing, and the sole issue before the Board shall be whether the Commissioner abused his or her discretion in denial of the petition for expungement. The hearing shall be on the record below, and determinations of credibility of witnesses made by the Commissioner shall be given deference by the Board.
  4. The Department shall take steps to provide reasonable notice to persons on the Registry of their right to seek an expungement under this section. Actual notice is not required. Reasonable steps may include activities such as the production of an informative fact sheet about the expungement process, posting of such information on the Department website, and other approaches typically taken by the Department to inform the public about the Department's activities and policies. The Department shall send notice of the expungement process to any person listed on the Registry for whom a Registry check has been requested.

    Added 2007, No. 77 , § 1, eff. June 7, 2007; amended 2007, No. 168 (Adj. Sess.), § 11; 2015, No. 92 (Adj. Sess.), § 2, eff. May 10, 2016.

History

Amendments--2015 (Adj. Sess.). Rewrote subsecs. (a) and (b).

Amendments--2007 (Adj. Sess.). Subsec. (a): Inserted "has been placed on the registry prior to July 1, 2009 and" following "name"; substituted "three" for "seven" preceding "years" and added the present second sentence.

ANNOTATIONS

1. Particular cases.

In reversing a decision including a mother in the child protection registry on the ground that there had been a risk of harm to the child but that no purpose would be served by placing the mother's name in the registry, the Human Services Board failed to follow the plain language of the statute. It had no discretion to conflate the two distinct statutory procedures of substantiation and expungement, and it erred in considering whether the mother was likely to commit similar acts of negligence in the future. In re R.H., 189 Vt. 15, 14 A.3d 267 (2010).

§ 4916d. Automatic expungement of Registry records.

Registry entries concerning a person who was substantiated for behavior occurring before the person reached 10 years of age shall be expunged when the person reaches the age of 18, provided that the person has had no additional substantiated Registry entries. A person substantiated for behavior occurring before the person reached 18 years of age and whose name has been listed on the Registry for at least three years may file a written request with the Commissioner seeking a review for the purpose of expunging an individual Registry record in accordance with section 4916c of this title.

Added 2007, No. 77 , § 1, eff. June 7, 2007; amended 2007, No. 168 (Adj. Sess.), § 12.

History

Amendments--2007 (Adj. Sess.). Added the present second sentence.

§ 4916e. Notice to minors.

If the person alleged to have abused or neglected a child is a minor, any notice required pursuant to this subchapter shall be sent:

  1. to the minor's parents or guardian; or
  2. if the child is in the custody of the Commissioner, to the social worker assigned to the child by the Department and the child's counsel of record.

    Added 2007, No. 77 , § 1, eff. June 7, 2007.

§ 4917. Multidisciplinary teams; empaneling.

  1. The Commissioner or his or her designee may impanel a multidisciplinary team or a special investigative multitask force team, or both, wherever in the State there may be a probable case of child abuse or neglect that warrants the coordinated use of several professional services. These teams shall participate and cooperate with the local special investigation unit in compliance with 13 V.S.A. § 5415 .
  2. The Commissioner or his or her designee, in conjunction with professionals and community agencies, shall appoint members to the multidisciplinary teams which may include persons who are trained and engaged in work relating to child abuse or neglect such as medicine, mental health, social work, nursing, child care, education, law, or law enforcement. The teams shall include a representative of the Department of Corrections. Additional persons may be appointed when the services of those persons are appropriate to any particular case.
  3. The empaneling of a multidisciplinary or special investigative multi-task force team shall be authorized in writing and shall specifically list the members of the team. This list may be amended from time to time as needed as determined by the Commissioner or his or her designee.

    Added 1981, No. 207 (Adj. Sess.), § 1, eff. April 25, 1982; amended 2007, No. 168 (Adj. Sess.), § 13; 2007, No. 172 (Adj. Sess.), § 21; 2007, No. 174 (Adj. Sess.), § 17; 2009, No. 1 , § 18, eff. March 4, 2009.

History

Amendments--2009. Subsec. (a): Added the second sentence.

Subsec. (b): Added the second sentence.

Amendments--2007 (Adj. Sess.). Subsec. (a): Act No. 168 deleted "of social and rehabilitation services" following "commissioner" and inserted "or a special investigative multi-task force team or both" following "multidisciplinary team".

Subsec. (a): Act No. 174 deleted "of social and rehabilitation services" following "commissioner".

Subsec. (b): Act No. 168 deleted "of social and rehabilitation services" following "commissioner" and substituted "child" for "day" preceding "care".

Subsec. (b): Act No. 172 substituted "for children and families" for "of social and rehabilitation services" following "department".

Subsec. (b): Act No. 174 deleted "of social and rehabilitation services" following "department".

Subsec. (c): Act No. 174 inserted "or special investigative multi-task force" following "multidisciplinary".

Prior law. 33 V.S.A. § 687.

§ 4918. Multidisciplinary teams; functions; guidelines.

  1. Multidisciplinary teams shall assist local district offices of the Department in identifying and treating child abuse or neglect cases. With respect to any case referred to it, the team may assist the district office by providing:
    1. case diagnosis or identification;
    2. a comprehensive treatment plan; and
    3. coordination of services pursuant to the treatment plan.
  2. Multidisciplinary teams may also provide public informational and educational services to the community about identification, treatment, and prevention of child abuse and neglect. They shall also foster communication and cooperation among professionals and organizations in their community and provide such recommendations or changes in service delivery as they deem necessary.

    Added 1981, No. 207 (Adj. Sess.), § 1, eff. April 25, 1982; amended 2007, No. 168 (Adj. Sess.), § 14; 2021, No. 20 , § 336.

History

Amendments--2021. Subsec. (b): Substituted "They" for "It", "their" for "its", and "they deem" for "it deems" in the second sentence.

Amendments--2007 (Adj. Sess.). Subsec. (a): Deleted "of social and rehabilitation services" following "department" and substituted "or" for "and" preceding "neglect" and "may" for "shall" preceding "assist".

Prior law. 33 V.S.A. § 688.

§ 4919. Disclosure of Registry records.

  1. The Commissioner may disclose a Registry record only as follows:
    1. To the State's Attorney or the Attorney General.
    2. To the owner or operator of a facility regulated by the Department for the purpose of informing the owner or operator that employment of a specific individual may result in loss of license, registration, certification, or authorization as set forth in section 152 of this title.
    3. To an employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults. The employer may submit a request concerning a current employee, volunteer, grantee, or contractor or an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment. The request shall be accompanied by a release signed by the current or prospective employee, volunteer, grantee, or contractor. If that individual has a record of a substantiated report, the Commissioner shall provide the Registry record to the employer. The employer shall not disclose the information contained in the Registry report.
    4. To the Commissioners of Disabilities, Aging, and Independent Living and of Mental Health or their designees for purposes related to the licensing or registration of facilities regulated by those Departments.
    5. To the Commissioners of Health, of Disabilities, Aging, and Independent Living and of Mental Health or their designees for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by those Departments, including persons to whom a conditional offer of employment has been made.
    6. Upon request or when relevant to other states' adult protective services offices.
    7. Upon request or when relevant to other states' child protection agencies.
    8. To the person substantiated for child abuse and neglect who is the subject of the record.
    9. To the Commissioner of Corrections in accordance with the provisions of 28 V.S.A. § 204a(b)(3) .
    10. To the Board of Medical Practice for the purpose of evaluating an applicant, licensee, or holder of certification pursuant to 26 V.S.A. § 1353 .
  2. An employer providing transportation services to children or vulnerable adults may disclose Registry records obtained pursuant to subdivision (a)(3) of this section to the Agency of Human Services or its designee for the sole purpose of auditing the records to ensure compliance with this subchapter. An employer shall provide such records at the request of the Agency or its designee. Only Registry records regarding individuals who provide direct transportation services or otherwise have direct contact with children or vulnerable adults may be disclosed.
  3. Volunteers shall be considered employees for purposes of this section.
  4. Disclosure of Registry records or information or other records used or obtained in the course of providing services to prevent child abuse or neglect or to treat abused or neglected children and their families by one member of a multidisciplinary team to another member of that team shall not subject either member of the multidisciplinary team, individually, or the team as a whole, to any civil or criminal liability notwithstanding any other provision of law.
  5. "Employer," as used in this section, means a person or organization that employs or contracts with one or more individuals to care for or provide transportation services to children or vulnerable adults, on either a paid or volunteer basis.
  6. In no event shall Registry records be made available for employment purposes other than as set forth in this subsection or for credit purposes. Any person who violates this subsection shall be fined not more than $500.00.
  7. Nothing in this subsection shall limit the Department's right to use and disclose information from its records as provided in section 4921 of this chapter.

    Added 1981, No. 207 (Adj. Sess.), § 1, eff. April 25, 1982; amended 1983, No. 169 (Adj. Sess.), § 2; 1991, No. 159 (Adj. Sess.), § 4; 1993, No. 100 , § 7; 2001, No. 135 (Adj. Sess.), § 16, eff. June 13, 2002; 2003, No. 66 , § 136b; 2005, No. 174 (Adj. Sess.), § 121; 2007, No. 77 , § 1, eff. June 7, 2007; 2007, No. 168 (Adj. Sess.), § 15; 2009, No. 1 , § 37; 2011, No. 61 , § 7, eff. June 2, 2011.

History

2014. In subdiv. (a)(2), substituted "section 152" for "section 309" to reflect recodification of section 309 by 2013, No. 131 (Adj. Sess.), §§ 13 and 14, eff. May 20, 2014. For present provisions see § 152 of this title.

Amendments--2011. Subdiv. (a)(10): Added.

Amendments--2009. Subdiv. (a)(9): Added.

Amendments--2007 (Adj. Sess.). Section heading: Substituted "registry records" for "information".

Subsec. (a): Deleted "or the commissioner's designee" following "commissioner"; substituted "record" for "information" following "registry" and deleted "set forth in section 4916 of this title or as" preceding "follows".

Subdiv. (a)(2): Deleted "or" preceding "registration" and inserted "certification, or authorization" following "registration".

Subdiv. (a)(3): Added the present fifth sentence.

Subdivs. (a)(4), (a)(5): Substituted "commissioners" for "commissioner"; inserted "and of mental health" following "independent living,"; substituted "their designees" for "the commissioner's designee" and "those departments" for "the department of disabilities, aging, and independent living".

Subdiv. (a)(8): Added.

Subsecs. (f), (g): Added.

Amendments--2007. Section amended generally.

Amendments--2005 (Adj. Sess.). Subdiv. (b)(4): Inserted "disabilities" preceding "aging" in two places and substituted "independent living" for "disabilities" in two places.

Subdiv. (b)(5): Deleted "developmental and mental" preceding "health" in two places; substituted "or of disabilities, aging, and independent living" for "services", "departments of" for "department" and "and of disabilities, aging, and independent living" for "services".

Amendments--2003. Rewrote the section.

Amendments--2001 (Adj. Sess.) Added "or abuse, neglect, or exploitation of a vulnerable adult" in subsec. (a) and added subsecs. (d) and (e).

Amendments--1993. Subsec. (c): Added.

Amendments--1991 (Adj. Sess.). Designated the existing provisions of the section as subsec. (b) and added subsec. (a).

Amendments--1983 (Adj. Sess.). Substituted "or" for "and" preceding "to treat".

Prior law. 33 V.S.A. § 689.

§ 4920. Repealed. 2007, No. 168 (Adj. Sess.), § 16.

History

Former § 4920. Former § 4920, relating to prohibition of retaliatory action by employer, was derived from 1991, No. 159 (Adj. Sess.), § 5.

§ 4921. Department's records of abuse and neglect.

  1. The Commissioner shall maintain all records of all investigations, assessments, reviews, and responses initiated under this subchapter. The Department may use and disclose information from such records in the usual course of its business, including to assess future risk to children, to provide appropriate services to the child or members of the child's family, or for other legal purposes.
  2. The Commissioner shall promptly inform the parents, if known, or guardian of the child that a report has been accepted as a valid allegation pursuant to subsection 4915(b) of this title and the Department's response to the report. The Department shall inform the parent or guardian of his or her ability to request records pursuant to subsection (c) of this section. This section shall not apply if the parent or guardian is the subject of the investigation.
  3. Upon request, the redacted investigation file shall be disclosed to:
    1. the child's parents, foster parent, or guardian, absent good cause shown by the Department, provided that the child's parent, foster parent, or guardian is not the subject of the investigation;
    2. the person alleged to have abused or neglected the child, as provided for in subsection 4916a(d) of this title; and
    3. the attorney representing the child in a child custody proceeding in the Family Division of the Superior Court.
  4. Upon request, Department records created under this subchapter shall be disclosed to:
    1. the court, parties to the juvenile proceeding, and the child's guardian ad litem if there is a pending juvenile proceeding or if the child is in the custody of the Commissioner;
    2. the Commissioner or person designated by the Commissioner to receive such records;
    3. persons assigned by the Commissioner to conduct investigations;
    4. law enforcement officers engaged in a joint investigation with the Department, an Assistant Attorney General, or a State's Attorney; and
    5. other State agencies conducting related inquiries or proceedings.
    6. [Repealed.]
    1. Upon request, relevant Department records or information created under this subchapter shall be disclosed to: (e) (1)  Upon request, relevant Department records or information created under this subchapter shall be disclosed to:
      1. a person, agency, or organization, including a multidisciplinary team empaneled under section 4917 of this title, authorized to diagnose, care for, treat, or supervise a child or family who is the subject of a report or record created under this subchapter, or who is responsible for the child's health or welfare;
      2. health and mental health care providers working directly with the child or family who is the subject of the report or record;
      3. educators working directly with the child or family who is the subject of the report or record;
      4. licensed or approved foster caregivers for the child;
      5. mandated reporters as defined by section 4913 of this subchapter, making a report in accordance with the provisions of section 4914 of this subchapter and engaging in an ongoing working relationship with the child or family who is the subject of the report;
      6. a Family Division of the Superior Court involved in any proceeding in which:
        1. custody of a child or parent-child contact is at issue pursuant to 15 V.S.A. chapter 11, subchapter 3A;
        2. a parent of a child challenges a presumption of parentage under 15C V.S.A. § 402(b)(3); or
        3. a parent of a child contests an allegation that he or she fostered or supported a bonded and dependent relationship between the child and a person seeking to be adjudicated a de facto parent under 15C V.S.A. § 501(a)(2);
      7. a Probate Division of the Superior Court involved in guardianship proceedings;
      8. other governmental entities for purposes of child protection.
    2. Determinations of relevancy shall be made by the Department.
    3. In providing records or information under this subsection (e), the Department may withhold:
      1. information that could compromise the safety of the reporter or the child or family who is the subject of the report; or
      2. specific details that could cause the child to experience significant mental or emotional stress.
    4. In providing records or information under this section, the Department may also provide other records related to its child protection activities for the child.
    5. Any persons or agencies authorized to receive confidential information under this section may share such information with other persons or agencies authorized to receive confidential information under this section for the purposes of providing services and benefits to the children and families those persons or agencies mutually serve.
  5. Upon request, relevant Department information created under this subchapter may be disclosed to a parent with a reasonable concern that an individual who is residing at least part time with the parent requestor's child presents a risk of abuse or neglect to the requestor's child. As it is used in this subsection, "relevant Department information" shall mean information regarding the individual that the Department determines could avert the risk of harm presented by the individual to the requestor's child. If the Department denies the request for information, the requestor may petition the Family Division of the Superior Court, which may, after weighing the privacy concerns of the individuals involved with the parent's right to protect his or her child, order the release of the information.
  6. Any records or information disclosed under this section and information relating to the contents of those records or reports shall not be disseminated by the receiving persons or agencies to any persons or agencies, other than to those persons or agencies authorized to receive information pursuant to this section. A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00.

    Added 2007, No. 168 (Adj. Sess.), § 17; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2015, No. 60 , § 5; 2017, No. 162 (Adj. Sess.), § 3.

History

Amendments--2017 (Adj. Sess.). Subdiv. (e)(1)(F): Added subdiv. (i) designation and "pursuant to 15 V.S.A. chapter 11, subchapter 3A" and added subdivs. (ii) and (iii).

Amendments--2015. Section amended generally.

Amendments--2009 (Adj. Sess.) Subdiv. (d)(6): Substituted "a probate division of the superior court" for "probate courts".

§ 4922. Rulemaking.

  1. The Commissioner shall develop rules to implement this subchapter. These shall include:
    1. rules setting forth criteria for determining whether to conduct an assessment or an investigation;
    2. rules setting out procedures for assessment and service delivery;
    3. rules outlining procedures for investigations;
    4. rules for conducting the administrative review conference;
    5. rules regarding access to and maintenance of Department records of investigations, assessments, reviews, and responses; and
    6. rules regarding the tiered Registry as required by section 4916 of this title.
  2. The rules shall strike an appropriate balance between protecting children and respecting the rights of a parent or guardian, including a parent or guardian with disabilities, and shall recognize that persons with a disability can be successful parents. The rules shall include the possible use of adaptive equipment and supports.
  3. These rules shall be adopted no later than July 1, 2009.

    Added 2007, No. 168 (Adj. Sess.), § 18.

§ 4923. Reporting.

The Commissioner shall publish an annual report regarding reports of child abuse and neglect no later than June 30, for the previous year. The report shall include:

  1. The number of reports accepted as valid allegations of child abuse or neglect.
  2. The number of reports that resulted in an investigative response; particularly:
    1. the number of investigations that resulted in a substantiation;
    2. the types of maltreatment substantiated;
    3. the relationship of the perpetrator to the victim, by category; and
    4. the gender and age group of the substantiated victims.
  3. The number of reports that resulted in an assessment response; particularly:
    1. the general types of maltreatment alleged in cases that received an assessment response; and
    2. the number of assessments that resulted in the recommendation of services.
  4. Trend information over a five-year period. Beginning with the adoption of the assessment response and continuing over the next five years, the report shall explain the impact of the assessment response on statistical reporting.

    Added 2007, No. 168 (Adj. Sess.), § 19.

PART 4 Juvenile Proceedings

CHAPTER 51. GENERAL PROVISIONS

Sec.

History

Effective date; applicability. 2007, No. 185 (Adj. Sess.), § 14 provides: "This act [which enacted this chapter] shall take effect January 1, 2009 and shall apply to any petition filed after the effective date or any permanency review hearing held after the effective date."

§ 5101. Purposes.

  1. The juvenile judicial proceedings chapters shall be construed in accordance with the following purposes:
    1. to provide for the care, protection, education, and healthy mental, physical, and social development of children coming within the provisions of the juvenile judicial proceedings chapters;
    2. to remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and to provide supervision, care, and rehabilitation that ensure:
      1. balanced attention to the protection of the community;
      2. accountability to victims and the community for offenses; and
      3. the development of competencies to enable children to become responsible and productive members of the community;
    3. to preserve the family and to separate a child from his or her parents only when necessary to protect the child from serious harm or in the interests of public safety;
    4. to ensure that safety and timely permanency for children are the paramount concerns in the administration and conduct of proceedings under the juvenile judicial proceedings chapters;
    5. to achieve the foregoing purposes, whenever possible, in a family environment, recognizing the importance of positive parent-child relationships to the well-being and development of children;
    6. to provide judicial proceedings through which the provisions of the juvenile judicial proceedings chapters are executed and enforced and in which the parties are ensured a fair hearing, and that their constitutional and other legal rights are recognized and enforced.
  2. The provisions of the juvenile judicial proceedings chapters shall be construed as superseding the provisions of the criminal law of this State to the extent the same are inconsistent with this chapter.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

ANNOTATIONS

1. Prosecution of adults for crimes committed when juvenile.

Legislative policy expressly seeks to rehabilitate juvenile offenders while removing the taint of criminality and the consequences of criminal behavior. That policy necessarily takes into account that a child who commits an offense between the ages of ten and 14 is still a child and that his or her culpability must be viewed in light of his or her age; thus, the policy is not furthered by automatically subjecting to criminal prosecution adult defendants who committed delinquent acts when they were children under the age of fourteen. In re D.K., 191 Vt. 328, 47 A.3d 347 (2012).

Annotations From Former § 5501

1. Constitutional requirements.

The freedom of children and parents to relate to one another in the context of the family, free of governmental interference, is a basic liberty long established in constitutional law, thus in order to insure that this fundamental liberty will not be unduly tampered with the Legislature has expressly provide that a child be separated from its parents only when necessary for his welfare or in the interests of public safety. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

2. Welfare of child.

When a juvenile defendant charged with the second-degree murder of a man who came to his home to have sex with his mentally ill mother sought transfer of his case to juvenile court, his case had to be considered in the context of defendant's increasing frustration at his inability to control the escalating events at home - events of the most humiliating and degrading nature for a child. That these events might have combined to overwhelm his youthful judgment was to inform the district court's discretion in light of the special status accorded juvenile cases by the Legislature. Chase v. State, 184 Vt. 430, 966 A.2d 139 (2008).

Ability of the public to follow a case through the judicial system was not a proper consideration in denying defendant's motion to transfer his case to juvenile court, and was not entitled to independent weight as a matter of law. A primary purpose of the juvenile court system is to protect juveniles from the taint of criminality that inevitably results from the publicity and permanence of convictions in the district court; the other provisions of the chapter regarding judicial proceedings in juvenile cases, including the discretionary transfer provisions, are to be construed to give effect to the purposes announced for the chapter. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

Primary concern of court construing this section must be with the welfare of the child. In re R.B., 152 Vt. 415, 566 A.2d 1310 (1989), cert. denied, Appleby v. Young, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990).

Laws adopted by state for protection, care, custody, and support of children are designed to establish protective procedures, primarily concerned with welfare of the child. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

Juvenile proceedings in Vermont are protective proceedings entirely concerned with the welfare of the child, and are not punitive; the inquiry relates to proper custody for the child, not his guilt or innocence as a criminal offender. In re Rich, 125 Vt. 373, 216 A.2d 266 (1965).

3. Compelling state interest.

The purpose sought to be effected by this chapter, as stated in this section, provide the compelling state interest required before the State may involve itself with the problem of child neglect. In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972).

4. Compelling parental rights.

Juvenile court is not free to weigh and compare the merits of various possible solutions free of any regard for compelling parental rights. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977); In re H.A., 148 Vt. 106, 528 A.2d 756 (1987).

5. Separation of child from parents.

Provision of this section that a child be separated from its parents only when necessary for his welfare or in the interests of public safety does not allow for intervention simply because a child might be better off somewhere else. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

Where child who had been abused by mother was in need of care or supervision, and father, despite existence of questions concerning his ability to assume active, responsible parental role, stood willing and able, with support of his parents, to provide child with a family environment, disposition order transferring custody to the Department would be vacated in absence of any convincing proof that father was an unfit parent, demonstrably incapable of providing appropriate home for child. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

6. Termination of parental rights.

Parental rights cannot be terminated simply because a child may be better off in another home. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

There is a legislative policy of permitting adoption without parental consent only when the best interests of the child cannot be achieved by temporary removal and placement outside the home, and that total termination of parental rights will not be ordered in the first instance if there is a reasonable possibility that the situation can be remedied and the family reunited within a reasonable time. In re D.R., 136 Vt. 478, 392 A.2d 951 (1978).

Though juvenile court has the power to sever all parental rights upon a finding that a minor is in need of care or supervision, such power should be used with extreme care and only as a last resort in carrying out the legislative purpose of providing for the care, protection. and wholesome development of children, and this purpose is to be achieved, when possible, in a family environment, with separation of child and parents only when necessary for the child's welfare or in the interests of public safety. In re D.R., 136 Vt. 478, 392 A.2d 951 (1978).

Order completely severing all parental rights and allowing adoption of six-year-old girl would be vacated where it was entered after initial finding of inability of parents to properly care for the child without leaving open the possibility in the future that the situation could be remedied and the family reunited. In re D.R., 136 Vt. 478, 392 A.2d 951 (1978).

7. Rehabilitation.

State owed plaintiffs no duty of care based on failure to control actions of juvenile who was in State custody but who had been temporarily placed with his mother during weekend of assault, since imposing negligence against State would erode public policy of rehabilitation of juveniles through reunification with their families and the public. Sorge v. State, 171 Vt. 171, 762 A.2d 816 (2000).

Cited. In re G.F., 142 Vt. 273, 455 A.2d 805 (1982); In re Y.B., 143 Vt. 344, 466 A.2d 1167 (1983); In re T.S., 144 Vt. 592, 481 A.2d 21 (1984); In re T.L.S., 144 Vt. 536, 481 A.2d 1037 (1984); In re L.S., 147 Vt. 36, 509 A.2d 1017 (1986); In re B.J C., 149 Vt. 196, 540 A.2d 1047 (1988); In re L.T., 149 Vt. 473, 545 A.2d 522 (1988); In re C.L., 151 Vt. 480, 563 A.2d 241 (1989); In re J.H., 156 Vt. 66, 587 A.2d 1009 (1991); In re P.M., 156 Vt. 303, 592 A.2d 862 (1991); In re Selivonik, 164 Vt. 383, 670 A.2d 831 (1995); In re J.M., 178 Vt. 591, 878 A.2d 293 (mem.) (June 9, 2005); In re J.F., 180 Vt. 583, 904 A.2d 1209 (mem.) (June 5, 2006).

History

Law review commentaries

Law review. For note, "Interstate Testimony By Child Protective Agency Workers in the Child Custody Context," see 21 Vt. L. Rev. 633 (1996).

§ 5101a. Juvenile justice legislative findings.

  1. The General Assembly finds and declares as public policy that an effective juvenile justice system protects public safety; connects youths and young adults to age-appropriate services that reduce the risk of reoffense; and, when appropriate, shields youths from the adverse impact of a criminal record.
  2. In order to accomplish these goals, the system should be based on the implementation of data-driven evidence-based practices that offer a broad range of alternatives, such that the degree of intervention is commensurate with the risk of reoffense.
  3. High-intensity interventions with low-risk offenders not only decrease program effectiveness, but are contrary to the goal of public safety in that they increase the risk of recidivism. An effective youth justice system includes pre-charge options that keep low-risk offenders out of the criminal justice system altogether.

    Added 2017, No. 201 (Adj. Sess.), § 1.

§ 5102. Definitions and provisions of general application.

As used in the juvenile judicial proceedings chapters:

  1. "Care provider" means a person other than a parent, guardian, or custodian who is providing the child with routine daily care but to whom custody rights have not been transferred by a court.
  2. "Child" means any of the following:
    1. an individual who is under 18 years of age and is a child in need of care or supervision as defined in subdivision (3)(A), (B), or (D) of this section (abandoned, abused, without proper parental care, or truant);
      1. an individual who is under 18 years of age, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and was under 16 years of age at the time the petition was filed; or (B) (i) an individual who is under 18 years of age, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and was under 16 years of age at the time the petition was filed; or
      2. an individual who is between 16 and 17.5 years of age, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and who is at high risk of serious harm to himself or herself or others due to problems such as substance abuse, prostitution, or homelessness.
    2. An individual who has been alleged to have committed or has committed an act of delinquency after becoming 10 years of age and prior to becoming 22 years of age, unless otherwise provided in chapter 52 or 52A of this title; provided, however:
      1. that an individual who is alleged to have committed an act before attaining 10 years of age that would be murder as defined in 13 V.S.A. § 2301 if committed by an adult may be subject to delinquency proceedings; and
      2. that an individual may be considered a child for the period of time the court retains jurisdiction under section 5104 of this title.
  3. "Child in need of care or supervision (CHINS)" means a child who:
    1. has been abandoned or abused by the child's parent, guardian, or custodian. A person is considered to have abandoned a child if the person is unwilling to have physical custody of the child; unable, unwilling, or has failed to make appropriate arrangements for the child's care; unable to have physical custody of the child and has not arranged or cannot arrange for the safe and appropriate care of the child; or has left the child with a care provider and the care provider is unwilling or unable to provide care or support for the child, the whereabouts of the person are unknown, and reasonable efforts to locate the person have been unsuccessful.
    2. is without proper parental care or subsistence, education, medical, or other care necessary for his or her well-being;
    3. is without or beyond the control of his or her parent, guardian, or custodian; or
    4. is habitually and without justification truant from compulsory school attendance.
  4. "Commissioner" means the Commissioner for Children and Families or the Commissioner's designee.
  5. "Conditional custody order" means an order issued by the court in a juvenile proceeding conferring legal custody of a child to a parent, guardian, relative, or a person with a significant relationship with the child subject to such conditions and limitations as the court may deem necessary to provide for the safety and welfare of the child. Any conditions and limitations shall apply only to the individual to whom custody is granted.
  6. "Court" means the Family Division of the Superior Court.
  7. "Custodial parent" means a parent who, at the time of the commencement of the juvenile proceeding, has the right and responsibility to provide the routine daily care and control of the child. The rights of the custodial parent may be held solely or shared and may be subject to the court-ordered right of the other parent to have contact with the child.
  8. "Custodian" means a person other than a parent or legal guardian to whom legal custody of the child has been given by order of a Vermont Superior Court or a similar court in another jurisdiction.
  9. "Delinquent act" means an act designated a crime under the laws of this State, or of another state if the act occurred in another state, or under federal law. A delinquent act shall include a violation of 7 V.S.A. § 656 ; however, it shall not include:
    1. snowmobile offenses in 23 V.S.A. chapter 29, subchapter 1 and motorboat offenses in 23 V.S.A. chapter 29, subchapter 2, except for violations of sections 3207a, 3207b, 3207c, 3207d, and 3323;
    2. pursuant to 4 V.S.A. § 33(b) , felony motor vehicle offenses committed by an individual who is 16 years of age or older, except for violations of 23 V.S.A. chapter 13, subchapter 13 and of 23 V.S.A. § 1091 .
  10. "Delinquent child" means a child who has been adjudicated to have committed a delinquent act.
  11. "Department" means the Department for Children and Families.
  12. "Guardian" means a person who, at the time of the commencement of the juvenile judicial proceeding, has legally established rights to a child pursuant to an order of a Vermont court or a court in another jurisdiction.
  13. "Judge" means a judge of the Family Division of the Superior Court.
  14. "Juvenile judicial proceedings chapters" means this chapter and chapters 52, 52A, and 53 of this title.
  15. "Juvenile proceeding" means a proceeding in the Family Division of the Superior Court under the authority of the juvenile judicial proceedings chapters.
    1. "Custody" means the legal status created by order of the court under the authority of the juvenile judicial proceedings chapters for children under 18 years of age that invests in a party to a juvenile proceeding or another person the following rights and responsibilities: (16) (A) "Custody" means the legal status created by order of the court under the authority of the juvenile judicial proceedings chapters for children under 18 years of age that invests in a party to a juvenile proceeding or another person the following rights and responsibilities:
      1. the right to routine daily care and control of the child and to determine where and with whom the child shall live;
      2. the authority to consent to major medical, psychiatric, and surgical treatment for a child;
      3. the responsibility to protect and supervise a child and to provide the child with food, shelter, education, and ordinary medical care; and
      4. the authority to make decisions that concern the child and are of substantial legal significance, including the authority to consent to civil marriage and enlistment in the U.S. Armed Forces, and the authority to represent the child in legal actions.
    2. If custody of a child under 18 years of age is transferred to a person other than a parent, the rights, duties, and responsibilities so transferred are subject to the residual parental rights of the parents.
    3. Custody for individuals who are 18 years of age or older means the status created by order of the court under the authority of chapter 52 of this title that invests in the Commissioner the authority to make decisions regarding placements.
  16. "Listed crime" means the same as defined in 13 V.S.A. § 5301 .
  17. "Noncustodial parent" means a parent who is not a custodial parent at the time of the commencement of the juvenile proceeding.
  18. "Officer" means a law enforcement officer, including a State Police officer, sheriff, deputy sheriff, municipal police officer, or constable who has been certified by the Criminal Justice Council pursuant to 20 V.S.A. § 2358 .
  19. "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.
  20. "Parent-child contact" means the right of a parent to have visitation with the child by court order.
  21. "Party" includes the following persons:
    1. the child with respect to whom the proceedings are brought;
    2. the custodial parent, the guardian, or the custodian of the child in all instances except a hearing on the merits of a delinquency petition;
    3. the noncustodial parent for the purposes of custody, visitation, and such other issues that the court may determine are proper and necessary to the proceedings, provided that the noncustodial parent has entered an appearance;
    4. the State's Attorney;
    5. the Commissioner for Children and Families;
    6. such other persons as appear to the court to be proper and necessary to the proceedings; and
    7. in youthful offender cases brought under chapter 52A of this title, the Commissioner of Corrections.
  22. "Probation" means the legal status created by order of the Family Division of the Superior Court in proceedings involving a violation of law whereby a delinquent child is subject to supervision by the Department under conditions specified in the court's juvenile probation certificate and subject to return to and change of legal status by the Family Division of the Superior Court for violation of conditions of probation at any time during the period of probation.
  23. "Protective supervision" means the authority granted by the court to the Department in a juvenile proceeding to take reasonable steps to monitor compliance with the court's conditional custody order, including unannounced visits to the home in which the child currently resides.
  24. "Reasonable efforts" means the exercise of due diligence by the Department to use appropriate and available services to prevent unnecessary removal of the child from the home or to finalize a permanency plan. When making the reasonable efforts determination, the court may find that no services were appropriate or reasonable considering the circumstances. If the court makes written findings that aggravated circumstances are present, the court may make, but shall not be required to make, written findings as to whether reasonable efforts were made to prevent removal of the child from the home. Aggravated circumstances may exist if:
    1. a court of competent jurisdiction has determined that the parent has subjected a child to abandonment, torture, chronic abuse, or sexual abuse;
    2. a court of competent jurisdiction has determined that the parent has been convicted of murder or manslaughter of a child;
    3. a court of competent jurisdiction has determined that the parent has been convicted of a felony crime that results in serious bodily injury to the child or another child of the parent; or
    4. the parental rights of the parent with respect to a sibling have been involuntarily terminated.
  25. "Residual parental rights and responsibilities" means those rights and responsibilities remaining with the parent after the transfer of legal custody of the child, including the right to reasonable contact with the child, the responsibility for support, and the right to consent to adoption.
  26. "Shelter" means a shelter designated by the Commissioner where a child taken into custody pursuant to subdivision 5301(3) of this title may be held for a period not to exceed seven days.
  27. "Victim" shall have the same meaning as in 13 V.S.A. § 5301(4) .
  28. "Youth" shall mean a person who is the subject of a motion for youthful offender status or who has been granted youthful offender status.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2009, No. 154 (Adj. Sess.), §§ 223, 238; 2015, No. 153 (Adj. Sess.), § 20; 2017, No. 72 , § 3; 2017, No. 83 , § 160; 2019, No. 45 , § 1, eff. May 30, 2019; 2019, No. 124 (Adj. Sess.), § 4.

History

2020. In subdiv. (19), substituted "Criminal Justice Council" for "Criminal Justice Training Council" in accordance with 2019, No. 166 (Adj. Sess.), § 2(b).

- 2014. In subdiv. (9)(A), added "23 V.S.A. chapter 29," before "subchapter 1" for clarity.

2017. The text of this section is based on the harmonization of two amendments. During the 2017 session, this section was amended twice, by Act Nos. 72 and 83, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2017 session, the text of Act Nos. 72 and 83 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments--2019 (Adj. Sess.). Subdiv. (16)(A): Substituted "Custody" for "Legal custody" and substituted "for children under 18 years of age that" for "which".

Subdiv. (16)(A)(iii): Added "and" at the end of the subdiv.

Subdiv. (16)(A)(iv): Substituted "that" for "which".

Subdiv. (16)(B): Deleted "legal" preceding "custody" and inserted "of a child under 18 years of age".

Subdiv. (16)(C): Added.

Amendments--2019. Subdivs. (2)(A) through (2)(B(ii): Substituted "years of age" for "the age of".

Subdiv. (2)(C): Inserted ", unless otherwise provided in chapter 52 or 52A of this title" following "years of age" in the introductory paragraph, deleted subdivs. (i) and (ii), and redesignated subdivs. (iii) and (iv) as subdivs. (i) and (ii).

Subdiv. (14): Inserted ", 52A," following "chapters 52".

Amendments--2017. Introductory language: Act No. 83 deleted ", unless the context otherwise requires" following "chapters".

Subdiv. (2): Act No. 72 substituted "22 years" for "18 years" in subdiv. (C), and "12 years of age" for "the age of 10" and "14 years of age" for "the age of 14" in subdiv. (C)(i).

Subdiv. (9): Act No. 72 substituted "7 V.S.A. § 656" for "7 V.S.A. §§ 656 and 657" in the second sentence.

Subdiv. (9): Act No. 83 inserted "a violation of" following "include"; and substituted " § 656" for " §§ 656 and 657" preceding "however".

Subdiv. (9)(B): Act No. 72 inserted "pursuant to 4 V.S.A. § 33(b), felony" preceding "motor vehicle" and substituted "is 16 years of age or older" for "is at least 16 years of age".

Subdiv. (22): Act No. 72 substituted "issues that the court may determine" for "issues which the court may determine" in subdiv. (c), added "for Children and Families" in subdiv. (E), and added subdiv. (G).

Amendments--2015 (Adj. Sess.). Added new subdiv. (28) and redesignated former subdiv. (28) as subdiv. (29).

Amendments--2009 (Adj. Sess.) Substituted "superior" for "family or probate" in subdiv. (8), "Vermont court or a court" for "Vermont probate court or a similar court" in subdiv. (12), and "the family division of the superior court" for "family court" in subdivs. (6), (13), (15) and (23).

2009 statutory revision. 2009, No. 3 , § 12a provides: "The staff of the 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 'civil marriage' for the word 'marriage.' Such changes shall be made when new legislation is proposed, or there is a republication of a volume of the Vermont Statutes Annotated."

ANNOTATIONS

Analysis

1. Child in need of care or supervision.

Mother's husband had the authority to enter a stipulation that the child was a child in need of care and supervision, as he was the child's custodian at that time as well as the presumptive legal parent by virtue of his marriage to the mother at the time of the child's birth; furthermore, it was not necessary for the mother to join the stipulation, as she was a noncustodial parent because she was incarcerated at the time and did not have the right or responsibility over the child's routine daily care or control. In re M.P., 211 Vt. 20, 219 A.3d 1315 (2019).

Trial court properly found that the oldest child was a child in need of care or supervision due to educational neglect in light of the child's excessive absences, her performance below academic standards, and the mother's lack of engagement to rectify these issues. In re B.B., 209 Vt. 528, 208 A.3d 244 (2019).

Evidence was insufficient to demonstrate that the two younger children were in need of care or supervision due to educational neglect, as they were not required to attend school at their age and the mother could discontinue the services related to their Individualized Education Plans without any presumption of neglect. In re B.B., 209 Vt. 528, 208 A.3d 244 (2019).

Child with significant mental illness who cannot be safely cared for by a parent in the home is not a child in need of care or supervision due to being "without or beyond the control of...her parent, guardian, or custodian" if the parent has effectively exercised parental authority to ensure that the child's care is properly managed in another setting. In re M.L., 207 Vt. 128, 186 A.3d 618 (2018).

When a mother who could not care for her child in her home due to the daughter's mental health issues had arranged for the child to be placed in a residential facility under the care of mental health professionals, and was looking for a long-term residential placement for her, the trial court erred in finding that the child was a child in need of care or supervision due to being beyond a parent's control. In re M.L., 207 Vt. 128, 186 A.3d 618 (2018).

Trial court properly found that a child was a child in need of care or supervision (CHINS) based on abandonment due to the mother's unwillingness to care for the child, because at the time the CHINS petition was filed, the mother had not been exercising any parental responsibilities for at least a year in that she only sporadically visited the child and had voluntarily abdicated all responsibility for his life, including his schooling and medical needs, to his grandparents. In re B.G., 203 Vt. 317, 155 A.3d 179 (2016).

There was sufficient evidence to support the determination that parents' child was a child in need of care or supervision, based on evidence that the mother would not sufficiently protect the child from the father if the child was returned to her care, despite her belief that he was dangerous to the child based on specific, factual circumstances she allegedly observed. In re J.W., 201 Vt. 123, 150 A.3d 190 (2016).

While the trial court's specific findings as to the two children who were found to be children in need of care or supervision (CHINS) were indeed truncated, and its analysis would have been far stronger if it had cited the facts in its ruling to support its ultimate conclusion that the children were CHINS, the decision provided a minimally sufficient basis to understand its reasoning, and to support its conclusion that the children were in need of care or supervision. In re J.C., 201 Vt. 192, 138 A.3d 830 (2016).

Trial court's findings in adjudicating two children to be children in need of care or supervision that their mother singled out a third child, her stepchild, for disparate treatment and was observed to treat the stepchild differently than the other children did not betray a logical inconsistency with its subsequent conclusion that her behavior posed a risk to the other children. The risk to the two children was plainly predicated on the agitated and unstable environment in which the stepchild's abuse occurred; finding that the mother singled out the stepchild for particular abuse was not inconsistent with that determination. In re J.C., 201 Vt. 192, 138 A.3d 830 (2016).

In adjudicating two children to be children in need of care or supervision, the trial court did not rely solely on the mother's treatment of her stepchild in concluding that the other two children were at risk, as the mother's cruelty occurred in circumstances where all three children were present and where, according to several disinterested witnesses, she exhibited a high level of stress and agitation which manifested itself in a least one instance of physical aggression toward one of the two children that caused concern and comment by the family's social worker. This was sufficient to support the trial court's conclusion that the mother's general conduct endangered the health and welfare of the two children. In re J.C., 201 Vt. 192, 138 A.3d 830 (2016).

In a child-in-need-of-care-or-supervision proceeding, none of the alleged factual errors identified by the mother were significant and none warranted reversal. Even if the trial court incorrectly believed that a five- or six- pound newborn was "underweight," it was not a significant finding in light of other evidence of the condition of the newborn, who had to be weaned off drugs because the mother used drugs while pregnant; the trial court's statement that the mother became pregnant "because" she was using drugs appeared to be a simple misstatement; and even if it was not completely accurate to say that the mother was not in treatment from the late fall of 2013 to May 2014, her participation was inconsistent, at best, and she continued to use street drugs. In re M.M., 200 Vt. 540, 133 A.3d 379 (2015).

Trial court did not err in concluding that an infant was a child in need of care or supervision when the mother was kicked out of drug treatment, accessed buprenorphine off the street, and did not return to treatment until shortly before the birth of the infant, who was born addicted to opioids. In re M.M., 200 Vt. 540, 133 A.3d 379 (2015).

In a child-in-need-of-care-or-supervision proceeding, it was reasonable for the trial court to consider that a person who could operate a car with a blood alcohol content of almost twice the legal limit might have an "unhealthy tolerance for alcohol." Even if this were not a reasonable assumption, the error was harmless, as it was undisputed that the mother was driving while significantly impaired with her minor daughter unrestrained in the backseat. In re M.M., 200 Vt. 540, 133 A.3d 379 (2015).

Trial court's findings concerning an older child were not too far removed from the date the child-in-need-of-care-or-supervision petition was filed to prove that the child was without proper parental care necessary for her well-being, as the mother had been on and off buprenorphine for nine years, was using this drug off the street while pregnant, was in and out of treatment for her opioid addiction, neglected the older child's dental needs to the point where the agency threatened to intervene, drove with the older child unrestrained twice, and pleaded guilty to driving while intoxicated shortly before the petition was filed. In re M.M., 200 Vt. 540, 133 A.3d 379 (2015).

Trial court did not construe the child-in-need-of-care-or-supervision statute too broadly; rather, it applied the plain language of the statute and appropriately assessed whether the children were without proper parental care necessary for their well-being. That the mother disagreed with the trial court's conclusion did not render its decision unconstitutional. In re M.M., 200 Vt. 540, 133 A.3d 379 (2015).

Trial court properly found that a child was a child in need of care or supervision, as the mother's inability to feed a baby or perform other necessary tasks without around-the-clock assistance from others was sufficient to show that the child was at risk of harm, the trial court made its determination not from inchoate concerns but on the basis of eyewitness testimony describing the mother's demonstrated limitations in safely parenting the child, and the trial court did not base its determination upon any presumptions arising from the mother's cognitive limitations. In re M.O., 200 Vt. 384, 131 A.3d 738 (2015).

Child was properly adjudicated as a child in need of supervision based on the mother's admission that her substance abuse had an impact on the child, which was made in the context of stipulating to a concession that her behavior of long-term substance abuse and her failure to access and engage in services to address her use rendered the child without proper parental care necessary for his well-being. In re B.R., 196 Vt. 304, 97 A.3d 867 (2014).

Facts found by the trial court - the father's long-standing and continued drug addiction, his lack of stable housing, and his failure to follow though with recommendations - were sufficient to support its conclusion that the child was a child in need of care or supervision. The State did not need to establish actual harm. In re L.M., 195 Vt. 637, 93 A.3d 553 (Feb. 14, 2014).

There was no merit to a father's argument that his child could not be a child in need of care or supervision because she was living with her grandmother at the time the petition was filed. The father's last-minute placement of the child with his mother did not change his chronic drug addiction, chronic homelessness, and his failure to follow through with recommendations. In re L.M., 195 Vt. 637, 93 A.3d 553 (Feb. 14, 2014).

Although many of the trial court's written findings were insufficiently supported, the remaining findings were sufficient to support the trial court's conclusion that the child was a child in need of care or supervision based on medical neglect when the child had a serious kidney disorder, for which he needed monitoring and regular shots. The parents had missed several important appointments, and a visiting nurse testified that at least twice she was unable to administer the child's weekly shot. In re D.D., 194 Vt. 508, 82 A.3d 1143 (2013).

Findings that a child's allegations of abuse by the father were the product of the mother's coaching, that this had caused psychological harm to the child, and that this posed a continuing risk of harm were sufficient to support the judgment that the child was a child in need of care or supervision. In re M.A., 193 Vt. 665 (mem.), 60 A.3d 732 (2012).

Court was not persuaded that the court held the State to a heightened standard of proof in a child-in-need-of-care-or-supervision (CHINS) proceeding when the case turned on the trial court's assessment of the weight of the evidence. While the State may have satisfied its prima facie burden, the family court was ultimately not persuaded by its evidence; in other words, although there was evidence tending to support the State's position, the court reasoned that such evidence, in its judgment, did not preponderate, and so, in a legal sense, it was unable to find that the children were CHINS. In re M.L. & Z.L., 187 Vt. 291, 993 A.2d 400 (2010).

In a child-in-need-of-care-or-supervision case, the State failed to show that the trial court committed reversible error by citing certain medical articles, the thrust of the trial court's statements about which was that there were exceptions or possible explanations for certain injuries similar to those suffered by the child. The trial court found the State's medical case more probable than parents' theories, despite its observations about these articles. In re M.L. & Z.L., 187 Vt. 291, 993 A.2d 400 (2010).

2. "Child" .

Juvenile proceedings act generally defines "child" to include "an individual who has been alleged to have committed or has committed an act of delinquency after becoming 10 years of age and prior to becoming 18 years of age." Hence, whether an individual is deemed to be a child subject to the jurisdiction of the Family Division depends on the offender's age at the time the delinquent act was committed, not at the time that the offender was charged with the delinquent act. In re D.K., 191 Vt. 328, 47 A.3d 347 (2012).

3. Truancy.

"Without justification" is an element of a child-in-need-of-care-and-supervision determination based on truancy which the State must prove by a preponderance of the evidence. The State may meet this burden through properly admitted school records showing the child's unexcused absence. In re J.H., 193 Vt. 541, 70 A.3d 1054 (2013).

Record evidence was fundamentally insufficient to establish that a minor, who was adjudicated a child in need of care and supervision based on truancy, was truant on the days alleged. The State called no witnesses from the minor's school to testify as to its policies and procedures governing whether, when, and how it reported a student truant, and adduced no school records to show that the minor was actually absent without justification on the days in question. In re J.H., 193 Vt. 541, 70 A.3d 1054 (2013).

4. Abuse.

In a child in need of care or supervision case, the trial court did not err in finding that a mother's actions constituted abuse when it found, based on a video and testimony, that the mother tossed the five-year-old child like a rag doll onto a gravel driveway, threw a toy at his feet as hard as she could, and then kicked at his face, and the fact that the child appeared happy later that day did not demonstrate that no abuse occurred. In re M.K., 198 Vt. 233, 114 A.3d 107 (2015).

5. Evidence.

Family Division's findings as to the parents' drug use in a child in need of care or supervision (CHINS) proceeding were not clearly erroneous, as the family court had the discretion to give minimal weight to the child's hearsay statements about what the parents did with plastic bags, to weigh the conflicting testimony and to find the parents to be credible regarding their recent history with drugs, and to not draw an inference against the parents based on circumstantial evidence; a single instance of heroin use by the mother a week prior to the caseworker's visit was minimally probative of the child's status as CHINS at the time the petition was filed. In re M.E., 211 Vt. 320, 225 A.3d 633 (2019).

Evidence did not support the finding that a child was a child in need of care or supervision (CHINS). The mother's admitted single use of benzodiazepines when the child was being cared for by others was minimally probative of the child's status two weeks later; the mother's appearing "off" on one occasion, and slow and forgetful on another, did not support a finding of CHINS absent a finding that the mother was impaired on those occasions; and findings from a prior CHINS decision concerning the mother's failure to protect one of her daughters from being exposed to domestic abuse were insufficient to support the present CHINS petition in the absence of evidence supporting the inference that she was continuing to expose her child to such risks. In re B.C., 209 Vt. 48, 203 A.3d 515 (2018).

Even if a trial court erred in taking judicial notice of a father's extensive criminal history in a child in need of care or supervision proceeding, any such error was harmless because it was clear that he had a criminal history and it was not significantly relied upon in the trial court's decision except to corroborate the mother's allegations concerning his behavior. In re J.W., 201 Vt. 123, 150 A.3d 190 (2016).

6. Parties.

When the paternal grandmother sought to appear in the juvenile proceeding through an attorney after the termination petition was filed and requested visitation, the trial court properly declined to enter her as a party and denied the request for visitation. Grandparents who are not guardians or custodians are not parties in juvenile proceedings; moreover, there is no statutory right to grandparent visitation for children who are the subject of juvenile proceedings. In re C.B., - Vt. - , 249 A.3d 1281 (Sept. 25, 2020).

§ 5103. Jurisdiction.

  1. The Family Division of the Superior Court shall have exclusive jurisdiction over all proceedings concerning a child who is or who is alleged to be a delinquent child or a child in need of care or supervision brought under the authority of the juvenile judicial proceedings chapters, except as otherwise provided in such chapters.
  2. Orders issued under the authority of the juvenile judicial proceedings chapters shall take precedence over orders in other Family Division proceedings and any order of another court of this State, to the extent they are inconsistent. This section shall not apply to child support orders in a divorce, parentage, or relief from abuse proceedings until a child support order has been issued in the juvenile proceeding.
    1. Except as otherwise provided by this title and by subdivision (2) of this subsection, jurisdiction over a child shall not be extended beyond the child's 18th birthday. (c) (1)  Except as otherwise provided by this title and by subdivision (2) of this subsection, jurisdiction over a child shall not be extended beyond the child's 18th birthday.
      1. Subdivision (c)(2)(A) effective until July 1, 2022; see also subdivision (c)(2)(A) effective July 1, 2022 set out below.  Jurisdiction over a child with a delinquency may be extended until six months beyond the child's: (2) (A) Subdivision (c)(2)(A) effective until July 1, 2022; see also subdivision (c)(2)(A) effective July 1, 2022 set out below.  Jurisdiction over a child with a delinquency may be extended until six months beyond the child's:
        1. 19th birthday if the child was 16 or 17 years of age when he or she committed the offense; or
        2. 20th birthday if the child was 18 years of age when he or she committed the offense.

          (2) (A) Subdivision (c)(2)(A) effective July 1, 2022; see also subdivision (c)(2)(A) effective until July 1, 2022 set out above. Jurisdiction over a child with a delinquency may be extended until six months beyond the child's:

          (i) 19th birthday if the child was 16 or 17 years of age when he or she committed the offense;

          (ii) 20th birthday if the child was 18 years of age when he or she committed the offense; or

        3. 21st birthday if the child was 19 years of age when he or she committed the offense.
      2. Except for custody of individuals 18 years of age or older that may be ordered by the court under the authority of chapter 52 of this title, custody of a child or youth 18 years of age or older shall not be retained by or transferred to the Commissioner for Children and Families.
      3. Jurisdiction over a child in need of care or supervision shall not be extended beyond the child's 18th birthday.
      4. Jurisdiction over a youthful offender shall not extend beyond the youth's 22nd birthday.
  3. The court may terminate its jurisdiction over a child prior to the child's 18th birthday by order of the court. If the child is not subject to another juvenile proceeding, jurisdiction shall terminate automatically in the following circumstances:
    1. upon the discharge of a child from juvenile or youthful offender probation, provided the child is not in the legal custody of the Commissioner;
    2. upon an order of the court transferring legal custody to a parent, guardian, or custodian without conditions or protective supervision;
    3. upon the adoption of a child following a termination of parental rights proceeding.

      Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 224; 2011, No. 159 (Adj. Sess.), § 1; 2015, No. 153 (Adj. Sess.), § 6, eff. Jan. 1, 2018; 2017, No. 201 (Adj. Sess.), § 5, eff. May 30, 2018; 2019, No. 45 , § 2, eff. May 30, 2019; 2019, No. 124 (Adj. Sess.), § 2; 2019, No. 124 (Adj. Sess.), § 3, eff. July 1, 2022; 2021, No. 65 , §§ 14, 15, eff. June 7, 2021.

History

Amendments--2021 Subdiv. (c)(2)(A): Act No. 65, §§ 14 and 15 deleted "pending" preceding "delinquency" in the intro. para. of the effective until July 1, 2022 and effective July 1, 2022 versions of the subdivision.

Subdiv. (c)(2)(A)(iii): Added to the effective July 1, 2022 version of subdiv. (c)(2)(A) by Act No. 65, § 15.

Amendments--2019 (Adj. Sess.). Subdiv. (c)(2): Act No. 124, § 2 added the subdiv. (c)(2)(A)(i) designation; added subdiv. (c)(2)(A)(ii); and, in subdiv. (c)(2)(B), substituted "Except for custody of individuals 18 years of age or older that may be ordered by the court under the authority of chapter 52 of this title," for "In no case shall" and inserted "shall not" preceding "be retained".

Subdiv. (c)(2)(iii): Added by Act No. 124, § 3, eff. July 1, 2022.

Subdiv. (d)(1): Substituted "provided" for "providing".

Amendments--2019. Subdiv. (c)(2)(B): Act No. 124 § 2 inserted "or youth" following "custody of a child".

Subdiv. (c)(2)(D): Added.

Subdiv. (d)(1): Act No. 124, § 2 inserted "or youthful offender" following "from juvenile".

Amendments--2017 (Adj. Sess.). Subdiv. (c)(2)(A): Substituted "with a pending delinquency" for "who has been adjudicated delinquent" following "child".

Amendments--2015 (Adj. Sess.). Subdiv. (c)(2)(A): Substituted "19th birthday if the child was 16 or 17 years of age" for "18th birthday if the offense for which the child has been adjudicated delinquent is a nonviolent misdemeanor and the child was 17 years old".

Subdiv. (c)(2)(B): Substituted "18 years of age" for "aged 18 years".

Subdiv. (c)(2)(D): Repealed.

Amendments--2011 (Adj. Sess.). Subsec. (c): Amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (a): Inserted "division of the superior" preceding "court".

Subsec. (b): Substituted "division" for "court" preceding "proceedings" in the first sentence.

Effective date of amendment. 2019, No. 124 (Adj. Sess.), § 12 provided that the amendment to this section by 2019, No. 124 (Adj. Sess.), § 3 shall take effect on July 1, 2022.

ANNOTATIONS

1. Particular cases.

As the family court plainly had jurisdiction over the category of case and was explicitly authorized to approve a written stipulation to the merits of the petition, even if it improperly adjudicated a child as a child in need of care or supervision based on the mother's stipulation alone, the judgment was not void for lack of subject-matter jurisdiction. For the same reason, the parents' argument that the adjudication was not supported by sufficient evidence because it was based on pre-birth circumstances was insufficient to render the judgment void. In re C.L.S., 211 Vt. 344, 225 A.3d 644 (2020).

Child-in-need-of-care-or-supervision (CHINS) merits decision was final and not void pursuant to a belated collateral attack. The family court had jurisdiction over the child-neglect proceeding and also had the ability to issue a CHINS decision pursuant to Uniform Child Custody Jurisdiction Act emergency jurisdiction; thus, even if the exercise of emergency jurisdiction was "ill-advised," in the context of this collateral attack, the underlying order was not void as a matter of law on subject-matter-jurisdiction grounds. In re C.P., 193 Vt. 29, 71 A.3d 1142 (2012).

Statutory scheme in place when defendant was charged in 2010 for crimes he allegedly committed when he was a juvenile provided the Family Division with exclusive original jurisdiction to adjudicate charges alleging delinquent acts committed by defendants 14 years of age. The Family Division's jurisdiction over juvenile delinquency proceedings is exclusive and takes precedence over any inconsistent criminal law provisions, but normally ends when the juvenile reaches 18 years of age. In re D.K., 191 Vt. 328, 47 A.3d 347 (2012).

When defendant, an adult, was charged with offenses alleged to have occurred when he was a juvenile between the ages of ten and 14 years, the Family Division's exclusive original jurisdiction terminated upon defendant having reached 18 years of age, and the Family Division properly dismissed the State's delinquency petition for lack of subject matter jurisdiction. There was no support for the State's position that even assuming the Family Division properly dismissed the delinquency petition under the applicable law, the criminal division retained jurisdiction in this case by virtue of its general jurisdiction over criminal offenses such as sexual assault. In re D.K., 191 Vt. 328, 47 A.3d 347 (2012).

§ 5104. Repealed. 2017, No. 72, § 8(a), effective July 1, 2018.

History

Former § 5104. Former § 5104, relating to retention of jurisdiction over youthful offenders, was derived from 2007, No. 185 (Adj. Sess.), § 1 and amended by 2009, No. 154 (Adj. Sess.), § 225; and 2017, No. 72 , § 8(a).

Annotations From Former § 5104

1. Timely disposition.

Legislature has demonstrated a preference for providing children with permanency and stability. This policy is best served by resolving the child's status as quickly as possible since children continue to develop and form relationships during the period between a merits adjudication and disposition in a child-in-need-of-care-or-supervision case. In re D.D., 194 Vt. 508, 82 A.3d 1143 (2013).

§ 5105. Venue and change of venue.

  1. Proceedings under the juvenile judicial proceedings chapters may be commenced in the county where:
    1. the child is domiciled;
    2. the acts constituting the alleged delinquency occurred; or
    3. the child is present when the proceedings commenced, if it is alleged that a child is in need of care or supervision.
  2. If a child or a parent, guardian, or custodian changes domicile during the course of a proceeding under the juvenile judicial proceedings chapters or if the petition is not brought in the county in which the child is domiciled, the court may change venue upon the motion of a party or its own motion, taking into consideration the domicile of the child and the convenience of the parties and witnesses.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

§ 5106. Powers and duties of Commissioner.

Subject to the limitations of the juvenile judicial proceedings chapters or those imposed by the court, and in addition to any other powers granted to the Commissioner under the laws of this State, the Commissioner has the following authority with respect to a child who is or may be the subject of a petition brought under the juvenile judicial proceedings chapters:

  1. To undertake assessments and make reports and recommendations to the court as authorized by the juvenile judicial proceedings chapters.
  2. To investigate complaints and allegations that a child is in need of care or supervision for the purpose of considering the commencement of proceedings under the juvenile judicial proceedings chapters.
  3. To supervise and assist a child who is placed under the Commissioner's supervision or in the Commissioner's legal custody by order of the court, and to administer sanctions in accordance with graduated sanctions established by policy and that are consistent with the juvenile probation certificate.
  4. To place a child who is in the Commissioner's legal custody in a family home or a treatment, rehabilitative, detention, or educational facility or institution subject to the provisions of sections 5292 and 5293 of this title. To the extent that it is appropriate and possible, siblings in the Commissioner's custody shall be placed together.
  5. To make appropriate referrals to private or public agencies.
  6. To perform such other functions as are designated by the juvenile judicial proceedings chapters.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 13.

History

Amendments--2015 (Adj. Sess.). Subdiv. (3): Amended generally.

§ 5107. Contempt power.

Subject to the laws relating to the procedures therefor and the limitations thereon, the court has the power to punish any person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders.

Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

§ 5108. Authority to issue warrants.

  1. The court may order a parent, guardian, or custodian to appear at any hearing or to appear at the hearing with the child who is the subject of a petition.
  2. If, after being summoned, cited, or otherwise notified to appear, a party fails to do so, the court may issue a warrant for the person's appearance.
  3. If the child is with the parent, guardian, or custodian, the court may issue a warrant for the person to appear in court with the child or, in the alternative, the court may issue an order for an officer to pick up the child and bring the child to court.
  4. If a summons cannot be served or the welfare of the child requires that the child be brought forthwith to the court, the court may issue a warrant for the parent, guardian, or custodian to appear in court with the child. In the alternative, the court may issue an order for an officer to pick up the child and bring the child to court during court hours.
  5. A person summoned who fails to appear without reasonable cause may be found in contempt of court.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

§ 5109. Subpoena.

Upon application of a party or on the court's own motion, the clerk of the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing under the juvenile judicial proceedings chapters.

Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

§ 5110. Conduct of hearings.

  1. Hearings under the juvenile judicial proceedings chapters shall be conducted by the court without a jury and shall be confidential.
  2. The general public shall be excluded from hearings under the juvenile judicial proceedings chapters, and only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and such other persons as the court finds to have a proper interest in the case or in the work of the court, including a foster parent or a representative of a residential program where the child resides, may be admitted by the court. An individual without party status seeking inclusion in the hearing in accordance with this subsection may petition the court for admittance by filing a request with the clerk of the court. This subsection shall not prohibit a victim's exercise of his or her rights under sections 5233 and 5234 of this title, and as otherwise provided by law.
  3. There shall be no publicity given by any person to any proceedings under the authority of the juvenile judicial proceedings chapters except with the consent of the child, the child's guardian ad litem, and the child's parent, guardian, or custodian. A person who violates this provision may be subject to contempt proceedings pursuant to Rule 16 of the Vermont Rules for Family Proceedings.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2015, No. 60 , § 6.

History

Reference in text. Section 5233, referred to in subsec. (b), was repealed by 2015, No. 153 (Adj. Sess.), § 36.

2011. Substituted "5233" for "5333" in subsec. (b) to correct an erroneous cross-reference.

Amendments--2015. Subsec. (b): Added the second sentence.

§ 5111. Noncustodial parents.

  1. If a child is placed in the legal custody of the Department and the identity of a parent has not been legally established at the time the petition is filed, the court may order that the child and the child's alleged genetic parents submit to genetic testing and may issue an order establishing parentage pursuant to 15C V.S.A. chapters 1-8 (parentage proceedings). A parentage order issued pursuant to this subsection shall not be deemed to be a confidential record.
  2. If a child is placed in the legal custody of the Department, the Department shall make reasonably diligent efforts to locate a noncustodial parent as early in the proceedings as possible, and notify the court of the noncustodial parent's address. A hearing shall not be delayed by reason of the inability of the Department to locate or serve a noncustodial parent.
  3. The court may order a custodial parent to provide the Department with information regarding the identity and location of a noncustodial parent.
  4. As soon as his or her address is known, a noncustodial parent shall be served with the petition and a copy of the summons. Thereafter, the court shall mail notices of the hearing to the noncustodial parent. The noncustodial parent shall be responsible for providing the court with information regarding any changes in address.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2019, No. 24 , § 6.

History

Amendments--2019 Subsec. (a): Amended generally.

ANNOTATIONS

1. Genetic testing.

Trial court erred in failing to order genetic testing of a father following the initial hearing on the child-in-need-of-care-or-supervision (CHINS) petition when the mother and the father had three prior children together, they were living together prior to the child's birth, and the father was named in the CHINS petition and appeared at the initial hearing. The error did not require reversal, however, as the father was not prejudiced in that the merits hearing properly focused on the child and the trial court explained at the end of the second day of the merits hearing that the father would have an opportunity to challenge any evidence presented at the merits hearing that was going to be used at disposition. In re M.S., 205 Vt. 429, 176 A.3d 1124 (Sept. 1, 2017).

§ 5112. Attorney and guardian ad litem for child.

  1. The court shall appoint an attorney for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters.
  2. The court shall appoint a guardian ad litem for a child under 18 years of age who is a party to a proceeding brought under the juvenile judicial proceedings chapters. In a delinquency proceeding, a parent, guardian, or custodian of the child may serve as a guardian ad litem for the child, providing his or her interests do not conflict with the interests of the child. The guardian ad litem appointed under this section shall not be a party to that proceeding or an employee or representative of such party.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2017, No. 72 , § 4.

History

Amendments--2017. Subsec. (b): Inserted "under 18 years of age" following "a child" in the first sentence.

§ 5113. Modification or vacation of orders.

  1. An order of the court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure.
  2. Upon motion of a party or the court's own motion, the court may amend, modify, set aside, or vacate an order on the grounds that a change in circumstances requires such action to serve the best interests of the child. The motion shall set forth in concise language the grounds upon which the relief is requested.
  3. Any order under this section shall be made after notice and hearing; however, the court may waive the hearing upon stipulation of the parties. All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value, even though not competent in a hearing on the petition.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

ANNOTATIONS

Analysis

1. Burden of proof.

In its post-disposition decision to modify the plan to transfer legal custody of a child back to the Department for Children and Families, the trial court applied the proper standard of proof, preponderance of the evidence. In re I.B., 202 Vt. 311, 149 A.3d 160 (2016).

Trial court's error in employing a preponderance-of-the-evidence standard, rather than a clear-and-convincing evidence standard, to determine whether the mother had stagnated in her ability to care for the children could not be considered harmless. Given the close balancing that the trial court engaged in and its explicit determination of the issue by an impermissibly low standard of proof, the appellate court could not conclude that as a matter of law the trial court's conclusion would have been the same under a clear-and-convincing-evidence standard. In re R.W., 191 Vt. 108, 39 A.3d 682 (2011).

2. Change of circumstances.

Trial court's findings that the level of stress, substance abuse, and domestic violence within the home had escalated since the child's return was sufficient to show a material change in circumstances, and its finding that the escalating turmoil posed a real risk to the child's physical and emotional well-being was sufficient to support its conclusion that a post-disposition transfer of custody to the Department for Children and Families was in the child's best interest. In re I.B., 202 Vt. 311, 149 A.3d 160 (2016).

Reading the statutory language in light of the legislative purpose to provide timely permanency to children and taking into account the unique nature of a termination order, the Vermont Supreme Court concludes that the statute allowing modification of juvenile orders based on changed circumstances does not apply to an order terminating parental rights. It would indefinitely expand the termination process and abolish the intended permanency of a termination-of-parental-rights order if a parent could seek to modify the order based on changed circumstances. In re A.W., 195 Vt. 226, 87 A.3d 508 (2013).

Because an order terminating a father's parental rights was not subject to the father's motion to modify based on changed circumstances, the trial court properly dismissed the motion. In re A.W., 195 Vt. 226, 87 A.3d 508 (2013).

Assuming in a termination of parental rights case that the family court was required to find a change of circumstances, any error on the family court's part in not doing so was harmless because the father's relinquishment of his parental rights and the custodial grandmother's death established changed circumstances by clear and convincing evidence. In re D.C., 193 Vt. 101, 71 A.3d 1191 (2012).

Family court is allowed to modify previous orders on the grounds that a change in circumstances requires such action to serve the best interests of the child. Thus, the threshold statutory requirement is found in the broader term "change of circumstances" rather than the more specific term "stagnation." In re D.C., 193 Vt. 101, 71 A.3d 1191 (2012).

Parental stagnation is but one way to show changed circumstances. To be sure, the threshold changed-circumstances requirement is most often met by showing stagnation in a parent's ability to care for a child, but the statutory standard is changed circumstances, not stagnation, and stagnation is not the only way to show changed circumstances. In re D.C., 193 Vt. 101, 71 A.3d 1191 (2012).

Stagnation cannot result solely from the actions of third parties, but that does not mean that other types of changed circumstances cannot arise independent of the subject parent's actions. In re D.C., 193 Vt. 101, 71 A.3d 1191 (2012).

3. Permanency goal.

Court does not read the various avenues for review of the circumstances and expectations of the parents and children to create independent opportunities to modify a disposition order in a child-in-need-of-care-or-supervision case without a showing of changed circumstances. Instead they reflect that circumstances must change within relatively short periods of time to reflect the goals of the case plan and achieve permanency for the children; thus, one result of a permanency hearing is to produce an estimate of when the permanency goal will be achieved. In re R.M., 194 Vt. 431, 82 A.3d 565 (2013).

4. Final order.

Because a motion by the Department for Children and Families (DCF) to retransfer custody to DCF was essentially a motion to modify the disposition plan, the trial court's order granting the motion, though erroneously styled as a temporary care order, was procedurally an order modifying the custodial aspects of the court's prior disposition order and as such was an appealable final order. In re I.B., 202 Vt. 311, 149 A.3d 160 (2016).

5. Relationship to other statutes.

General Assembly did not intend to replace relief for juveniles under the Post-Conviction Relief Act with relief under the statute governing modification or vacation of orders in juvenile proceedings. Instead, it contemplated that the statutes would be interpreted harmoniously. Thus, petitioner was entitled to use the act to challenge his delinquency adjudication. In re D.C., 202 Vt. 340, 149 A.3d 466 (2016).

6. Termination of parental rights.

In terminating a mother's parental rights, the trial court properly found that her ability to care for the children had stagnated, as any misstatement about the mother's prompt engagement in substance abuse treatment was harmless given her relapses, the trial court properly characterized her recovery as in the early stages, the mother, not the agency, was responsible for her failure to engage in parent-child contact, and even if the mother's upcoming surgery was irrelevant, the trial court's decision did not turn on this finding. In re A.M. & G.M., - Vt. - , 246 A.3d 419 (Oct. 16, 2020).

It was error to terminate the parental rights of the child's biological father. While there was a change of circumstances arising from the identification of the father, who had previously acted as a caretaker for the child, as a legal parent not previously identified or recognized in the approved case plan adopted in the disposition order, the family court based its conclusion that termination was in the child's best interests on its finding of stagnation, which was inapplicable in the absence of a disposition order that included a case plan that the father had to follow. In re M.P., 211 Vt. 20, 219 A.3d 1315 (2019).

Vermont provides representation in the proceeding following a petition in juvenile court including any subsequent proceedings arising from an order therein. and the statutes on juvenile proceedings specifically provide that an order of the court may be set aside in accordance with Rule 60. In enacting the statutory scheme for juvenile proceedings, the Legislature specifically contemplated that a Rule 60 motion is a "subsequent proceeding" that may arise; therefore, parents who had voluntarily relinquished their parental rights were entitled to assigned counsel for purposes of their Rule 60(b) motion seeking to reopen the termination of parental rights decision. In re M.T., 206 Vt. 80, 179 A.3d 754 (Nov. 3, 2017).

Statute allowing modification or vacation of orders in juvenile proceedings does not apply to an order terminating parental rights. Thus, a mother who had voluntarily relinquished her parental rights after entering into a postadoption-contact agreement with the child's grandmother was not entitled under the statute to vacate the termination order after the agency removed the child from the grandmother's home and placed her with another pre-adoptive foster family. In re P.K., 204 Vt. 102, 164 A.3d 665 (Jan. 6, 2017).

§ 5114. Best interests of the child.

  1. At the time of a permanency review under section 5321 of this title, a modification hearing under section 5113 of this title, or at any time a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the Commissioner or the attorney for the child, the court shall consider the best interests of the child in accordance with the following:
    1. the interaction and interrelationship of the child with his or her parents, siblings, foster parents, if any, and any other person who may significantly affect the child's best interests;
    2. the child's adjustment to his or her home, school, and community;
    3. the likelihood that the parent will be able to resume or assume parental duties within a reasonable period of time;
    4. whether the parent has played and continues to play a constructive role, including personal contact and demonstrated emotional support and affection, in the child's welfare.
  2. Except in cases where a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the Commissioner or the attorney for the child, the court shall also consider whether the parent is capable of playing a constructive role, including demonstrating emotional support and affection, in the child's welfare.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

ANNOTATIONS

Analysis

1. Burden of proof.

In a termination of parental rights case, the trial court did not impermissibly shift the burden of proof with respect to the child's adjustment to his home, school, and community; viewed in context, the trial court was not requiring the father to show that the child would adjust well to his home, but was refuting the argument that the child's complete failure to adjust to alternative community placements somehow supported a placement with the father or militated against termination. The evidence that the child required even more structure, discipline, and counseling than trained therapeutic foster parents were able to provide did not support a placement with the father, whom the evidence showed to be largely incapable of understanding or attending to his extensive needs. In re B.C., 194 Vt. 391, 81 A.3d 1152 (2013).

Trial court's error in employing a preponderance-of-the-evidence standard, rather than a clear-and-convincing evidence standard, to determine whether the mother had stagnated in her ability to care for the children could not be considered harmless. Given the close balancing that the trial court engaged in and its explicit determination of the issue by an impermissibly low standard of proof, the appellate court could not conclude that as a matter of law the trial court's conclusion would have been the same under a clear-and-convincing-evidence standard. In re R.W., 191 Vt. 108, 39 A.3d 682 (2011).

2. Unfitness of parent.

In a termination of parental rights case, the family court properly found that the mother was unfit. It did not terminate her rights because she was poor; rather, it found that she was not taking medications to address her mental-health issues, had no idea where she would be living month to month, acknowledged not knowing what the child's needs were, did not recognize the significance of the child's developmental delays, and had not taken any steps to be in a position to parent the child. In re D.C., 193 Vt. 101, 71 A.3d 1191 (2012).

3. Efforts to prevent removal.

Whether the Department for Children and Families made reasonable efforts to prevent a child's removal from his home is a separate question from, and not a prerequisite to, the issue of whether termination of parental rights is warranted under the statutory criteria regarding the best interests of the child. In re D.C., 193 Vt. 101, 71 A.3d 1191 (2012).

4. Particular cases.

In a termination of parental rights case, the trial court properly found that the parents would not be able to parent the children within a reasonable time, as the evidence, including the parents' inability to maintain a home free of filth and to learn from parenting coaching, supported the finding of lack of progress and of stagnation. Furthermore, the trial court was not required to expressly consider the opinions of the guardians ad litem in reaching its decision. In re H.T., 211 Vt. 476, 227 A.3d 504 (2020), cert denied, S.T. v. VT Dep't for Children and Families, 2020 U.S. LEXIS 4397, - U.S. - , 141 S. Ct. 418, 208 L. Ed. 2d 121 (U.S. 2020).

It was error to terminate the parental rights of the child's biological father. While there was a change of circumstances arising from the identification of the father, who had previously acted as a caretaker for the child, as a legal parent not previously identified or recognized in the approved case plan adopted in the disposition order, the family court based its conclusion that termination was in the child's best interests on its finding of stagnation, which was inapplicable in the absence of a disposition order that included a case plan that the father had to follow. In re M.P., 211 Vt. 20, 219 A.3d 1315 (2019).

Trial court properly terminated a mother's parental rights, as it did not focus on her incarceration per se, but on its impact on her ability to resume parenting within a reasonable time, and it duly weighed the statutory best-interests criteria and determined by clear and convincing evidence that the mother could not resume her parental duties within a reasonable period of time and that whatever bond she had with the child did not overcome other criteria compelling termination of her parental rights. In re N.L., 209 Vt. 450, 207 A.3d 475 (2019).

In a termination of parental rights proceeding, the Family Division made inadequate findings on the best interests of the child with respect to the father, most particularly regarding whether he would be able to resume his parental duties within a reasonable period of time from the child's perspective. It did not discuss or evaluate father's failure to seek contact with the child, notwithstanding the undisputed evidence that he made no effort to contact the Department for Children and Families or seek contact with the child from the time she was taken into State custody in August 2017 until the termination petition was filed in January 2018. In re N.L., 209 Vt. 450, 207 A.3d 475 (2019).

Statutory best-interests factors compelled termination of a father's parental rights when the father had never played a constructive role in the child's life, made no effort to establish visits with her for a critical period of several months after she was taken into State custody, was responsible for the lengthy delay in establishing any contact, and would not be able to resume any parenting role within a reasonable period of time from the child's perspective, considering her age, the length of time she had spent in State custody, and her need for permanency. In re N.L., 209 Vt. 450, 207 A.3d 475 (2019).

For purposes of the statutory best-interests analysis in a termination of parental rights case, the record did not support the mother's contention that she had a significant or constructive relationship with the children, as the mother had not progressed beyond supervised weekly visits, the foster families had been the people who had met the children's substantial needs, and while the mother had made some progress, she still struggled with her parenting skills. In re N.C. & A.F., 204 Vt. 658, 159 A.3d 1098 (Apr. 24, 2017).

In a termination of parental rights case, it was appropriate for the family court, irrespective of the fact that the criminal charges against the father were still pending, to consider his pretrial incarceration and its consequences in evaluating what course of action was in the child's best interests. In re M.W., 201 Vt. 622, 145 A.3d 1250 (2016).

Family court properly terminated a father's parental rights when it found that the father was never the child's primary caregiver; the father was incarcerated and was now unknown to the child; the father had been incarcerated for nearly two years, during which period the child had endured trauma and had since developed a significant bond with his maternal grandparents; the child was a fragile child in dire need of stability and permanence; the length of the father's pretrial incarceration was uncertain; and even if the father was ultimately not convicted of the multiple crimes with which he had been charged, it would require a significant period of time for him to become part of the child's life. In re M.W., 201 Vt. 622, 145 A.3d 1250 (2016).

Trial court did not err in terminating a father's parental rights. It concluded that it would be impossible for the father to care for the mother, protect the children, meet everyone's needs, including his own, and support the family, and that the father could not care for the children on his own even if he chose to live apart from the mother; while the trial court recognized that a relative had played some role in the father's lack of contact with the children, it found the father responsible for the lack of contact as well. In re R.B., 200 Vt. 45, 126 A.3d 496 (2015).

Trial court did not err in terminating a mother's parental rights due to the child's need for permanency while at the same time not terminating the father's, as it terminated the mother's rights for multiple reasons, only one of which was the child's need for permanency, and it found that unlike the mother, the father would most likely be able to resume his parental duties within a reasonable period of time, given his relatively short history of drug use and his demonstrated commitment to overcoming his addiction and caring for his son. Furthermore, speculation over whether the father might move back in with the mother was not a sufficient basis to reverse the Family Division's termination order with respect to the mother. In re C.F., 198 Vt. 504, 117 A.3d 819 (2015).

In a termination of parental rights case, the evidence supported the trial court's critical conclusion that the father would not be able to resume parental responsibilities within a reasonable period of time; the trial court expressly found that in light of the overwhelming evidence of the child's extreme trauma and the need for trained care providers to provide a safe and stable environment, neither the father nor the child's paternal grandparents could provide for the child's highly specialized needs. The father also overlooked the fundamental requirement that a reasonable time had to be measured from the viewpoint of the child's needs, and the substantial evidence attesting to the child's critical need for permanence immediately, while he was still relatively young. In re B.C., 194 Vt. 391, 81 A.3d 1152 (2013).

In a termination of parental rights case, the trial court did not err in finding that the father had not played a significant role in the child's life. The evidence supported the finding that the father's role in caring for the child was limited, and the trial court did not give the long suspension of visitation substantial weight in its ruling, which was based fundamentally on the inability of the father or his extended family to understand or address the child's extensive needs now or in the future, and thus his inability to resume parental responsibilities within a reasonable time. In re B.C., 194 Vt. 391, 81 A.3d 1152 (2013).

Despite the mother's progress in meeting her personal goals, termination of her parental rights was in the child's best interests. The mother had little capacity to adapt her care to the child's needs, the residence where mother and father reside was not a suitable place for the child, neither parent was capable of living independently of their communal living situation, the child suffered developmental delays while living with his parents, the mother and the child did not share a close bond, and the child would suffer lasting damage if reunification were attempted and unsuccessful. In re C.P., 193 Vt. 29, 71 A.3d 1142 (2012).

5. Relationship to other factors.

In a termination of parental rights case, the level of assistance provided to parents is relevant in determining whether a parent is unlikely to be able to resume parental duties within a reasonable period of time. But whether the Department for Children and Families made reasonable efforts to achieve permanency is a separate question from whether termination is in the child's best interests, and the former is not a prerequisite to the latter. In re C.P., 193 Vt. 29, 71 A.3d 1142 (2012).

§ 5115. Protective order.

  1. On motion of a party or on the court's own motion, the court may make an order restraining or otherwise controlling the conduct of a person if the court finds that such conduct is or may be detrimental or harmful to a child.
  2. The person against whom the order is directed shall be served with notice of the motion and the grounds therefor and be given an opportunity to be heard.
  3. Upon a showing that there is a risk of immediate harm to a child, the court may issue a protective order ex parte. A hearing on the motion shall be held no more than 10 days after the issuance of the order.
  4. The court may review any protective order at a subsequent hearing to determine whether the order should remain in effect.
  5. A person who is the subject of an order issued pursuant to this section and who intentionally violates a provision of the order that concerns contact between the child and that person shall be punished in accordance with 13 V.S.A. § 1030 .

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

ANNOTATIONS

1. Postadoption contact.

Statute governing protective orders in juvenile proceedings generally permits the Superior Court to issue protective orders upon a showing that the conduct of a person is or may be detrimental or harmful to a child. Approving a postadoption-contact agreement based, in part, on a finding that the agreement will serve the child's best interests is not the same as finding that the child will be harmed if the agreement is not fulfilled. In re P.K., 204 Vt. 102, 164 A.3d 665 (Jan. 6, 2017).

When a mother who had voluntarily relinquished her parental rights after entering into a postadoption-contact agreement with the child's grandmother sought a protective order after the agency removed the child from the grandmother's home and placed her with another pre-adoptive foster family, permitting a protective order would be directly inconsistent with the Legislature's more specific and recent recognition that although a postadoption-contact agreement could not be approved unless it served the child's best interests, any parent who was a party to such an agreement had to acknowledge that the termination of that parent's parental rights was final even if the adoption or expected contact did not occur. In re P.K., 204 Vt. 102, 164 A.3d 665 (Jan. 6, 2017).

§ 5116. Costs and expenses for care of child.

  1. The Commissioner may incur such expenses for the proper care, maintenance, and education of a child, including the expenses of medical, surgical, or psychiatric examination or treatment, as the Commissioner considers necessary in connection with proceedings under the juvenile judicial proceedings chapters.
  2. The costs of any proceeding under the juvenile judicial proceedings chapters incurred under the provisions of this title shall be borne by the court.
  3. The court may, in any order of disposition under the juvenile judicial proceedings chapters, make and enforce by levy and execution an order of child support to be paid by the parent of the child.
  4. The court may delegate to the office of magistrate its authority to make and enforce an order of child support to be paid by the parent of a child.
  5. A child support order shall only remain in effect as long as the child who is the subject of the support order is in the legal custody of the Commissioner and placed with someone other than the parent or parents responsible for support.
  6. Except as otherwise provided in section 5119 of this title, orders issued pursuant to this section shall not be confidential.
  7. Notwithstanding subsection 5103(b) of this title, an order terminating a parent's residual parental rights ends that parent's obligation to pay child support. However, in no event shall an order terminating residual parental rights terminate an obligation for child support arrearages accrued by the parent prior to the date of the termination of parental rights order.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

History

2013. In subsec. (a), deleted "without limitation," following "including" in accordance with 2013, No. 5 , § 4.

Revision note - In subsec. (b), substituted "this title" for "Title 33" to conform reference to V.S.A. style.

§ 5117. Records of juvenile judicial proceedings.

  1. Except as otherwise provided, court and law enforcement reports and files concerning a person subject to the jurisdiction of the court shall be maintained separate from the records and files of other persons. Unless a charge of delinquency is transferred for criminal prosecution under chapter 52 of this title or the court otherwise orders in the interests of the child, such records and files shall not be open to public inspection nor their contents disclosed to the public by any person. However, upon a finding that a child is a delinquent child by reason of commission of a delinquent act that would have been a felony if committed by an adult, the court, upon request of the victim, shall make the child's name available to the victim of the delinquent act. If the victim is incompetent or deceased, the child's name shall be released, upon request, to the victim's guardian or next of kin.
    1. Notwithstanding the foregoing, inspection of such records and files by or dissemination of such records and files to the following is not prohibited: (b) (1)  Notwithstanding the foregoing, inspection of such records and files by or dissemination of such records and files to the following is not prohibited:
      1. a court having the child before it in any juvenile judicial proceeding;
      2. the officers of public institutions or agencies to whom the child is committed as a delinquent child;
      3. a court in which a person is convicted of a criminal offense for the purpose of imposing sentence upon or supervising the person, or by officials of penal institutions and other penal facilities to which the person is committed, or by a parole board in considering the person's parole or discharge or in exercising supervision over the person;
      4. the parties to the proceeding, court personnel, the State's Attorney or other prosecutor authorized to prosecute criminal or juvenile cases under State law, the child's guardian ad litem, the attorneys for the parties, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the child;
      5. the child who is the subject of the proceeding, the child's parents, guardian, and custodian may inspect such records and files upon approval of the Family Court judge;
      6. any other person who has a need to know may be designated by order of the Family Division of the Superior Court;
      7. the Commissioner of Corrections if the information would be helpful in preparing a presentence report, in determining placement, or in developing a treatment plan for a person convicted of a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3;
      8. the Human Services Board and the Commissioner's Registry Review Unit in processes required under chapter 49 of this title; and
      9. the Department for Children and Families.
    2. Files inspected under this subsection shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.
    1. Upon motion of a party in a divorce or parentage proceeding related to parental rights and responsibilities for a child or parent-child contact, the court may order that court records in a juvenile proceeding involving the same child or children be released to the parties in the divorce proceeding. (c) (1)  Upon motion of a party in a divorce or parentage proceeding related to parental rights and responsibilities for a child or parent-child contact, the court may order that court records in a juvenile proceeding involving the same child or children be released to the parties in the divorce proceeding.
    2. Upon the court's own motion in a probate proceeding involving adoption, guardianship, or termination of parental rights, the court may order that court records in a juvenile proceeding involving the same child or children be released to the Probate Division. When the court orders release of records pursuant to this subdivision, the court shall notify the parties that it intends to consider confidential juvenile case information and shall provide the parties with access to the information in a manner that preserves its confidentiality.
    3. Files inspected under this subsection shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE OF UP TO $2,000.00. The public shall not have access to records from a juvenile proceeding that are filed with the court or admitted into evidence in the divorce or parentage proceeding or in the probate proceeding.
  2. Such records and files shall be available to State's Attorneys and all other law enforcement officers in connection with record checks and other legal purposes.
  3. Any records or reports relating to a matter within the jurisdiction of the court prepared by or released by the court or the Department for Children and Families, any portion of those records or reports, and information relating to the contents of those records or reports shall not be disseminated by the receiving persons or agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section.
  4. This section does not provide access to records sealed in accordance with section 5119 of this title unless otherwise provided in section 5119.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 1 , § 33a; 2009, No. 1 54 (Adj. Sess.), § 238; 2019, No. 40 , § 4; 2019, No. 167 (Adj. Sess.), § 22, eff. Oct. 7, 2020; 2021, No. 65 , § 17, eff. June 7, 2021.

History

Amendments--2021 Subsec. (a): Substituted "that" for "which" following the first instance of "delinquent act" in the third sentence.

Subdiv. (b)(1): Inserted "or dissemination of such records and files to" in the intro. para.

Subdiv. (b)(1)(D): Inserted "the parties to the proceeding," at the beginning.

Subdiv. (b)(1)(H), (b)(1)(I): Added.

Amendments--2019 (Adj. Sess.). Subdiv. (b)(1)(E): Deleted "and guardian ad litem" following "custodian."

Amendments--2019. Subsec. (c): Added the subdiv. (1)-(3) designations, added subdiv. (2), and added "or in the probate proceeding" at the end of subdiv. (3).

Amendments--2009 (Adj. Sess.). Subdiv. (b)(1)(F): Substituted "division of the superior" preceding "court".

Amendments--2009. Subdiv. (b)(1)(G): Added.

ANNOTATIONS

1. Applicability.

Although the statute governing Human Services Board hearings designates the family court's adjudication "competent evidence" in a substantiation proceeding, it does nothing to circumvent the clear requirement in the statute governing records in juvenile judicial proceedings that the Board receive that evidence only when its release has been authorized by a designation order from the family court. In re Appeal of H.H., - Vt. - , 251 A.3d 560 (Dec. 31, 2020).

Need-to-know designation from the family court in a child-in-need-of-care-or-supervision (CHINS) proceeding was required before the Human Services Board in a substantiation proceeding could inspect the contents of the juvenile files in question. Thus, because this essential step had been bypassed, the facts stipulated to in the CHINS proceeding were not properly considered by the Board in granting summary judgment based on collateral estoppel. In re Appeal of H.H., - Vt. - , 251 A.3d 560 (Dec. 31, 2020).

§ 5118. Limited exception to confidentiality of records of juveniles maintained by the Family Division of the Superior Court.

  1. As used in this section:
    1. "Delinquent act requiring notice" means conduct resulting in a delinquency adjudication related to a listed crime as defined in 13 V.S.A. § 5301(7) .
    2. "Independent school" means an approved or recognized independent school under 16 V.S.A. § 166 .
  2. While records of juveniles maintained by the Family Division of the Superior Court should be kept confidential, it is the policy of the General Assembly to establish a limited exception for the overriding public purposes of rehabilitating juveniles and protecting students and staff within Vermont's public and independent schools.
  3. Notwithstanding any law to the contrary, a court finding that a child has committed a delinquent act requiring notice shall, within seven days of such finding, provide written notice to the superintendent of schools for the public school in which the child is enrolled or, in the event the child is enrolled in an independent school, the school's headmaster.
  4. The written notice shall contain only a description of the delinquent act found by the court to have been committed by the child and shall be marked: "UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00." The envelope in which the notice is sent by the court shall be marked: "CONFIDENTIAL: TO BE OPENED BY THE SUPERINTENDENT OR HEADMASTER ONLY."
  5. The superintendent or headmaster, upon receipt of the notice, shall inform only those persons within the child's school with a legitimate need to know of the delinquent act, and only after first evaluating rehabilitation and protection measures that do not involve informing staff or students. Persons with a legitimate need to know are strictly limited to only those for whom the information is necessary for the rehabilitation program of the child or for the protection of staff or students. "Need to know" shall be narrowly and strictly interpreted. Persons receiving information from the superintendent or headmaster shall not, under any circumstances, discuss such information with any other person except the child, the child's parent, guardian, or custodian, others who have been similarly informed by the superintendent or headmaster, law enforcement personnel, or the juvenile's probation officer.
  6. The superintendent and headmaster annually shall provide training to school staff about the need for confidentiality of such information and the penalties for violation of this section.
  7. The written notice shall be maintained by the superintendent or headmaster in a file separate from the child's education record. If the child transfers to another public or independent school, the superintendent or headmaster shall forward the written notice in the original marked envelope to the superintendent or headmaster for the school to which the child transferred. If the child either graduates or turns 18 years of age, the superintendent or headmaster then possessing the written notice shall destroy such notice.
  8. If legal custody of the child is transferred to the Commissioner, or if the Commissioner is supervising the child's probation, upon the request by a superintendent or headmaster, the Commissioner shall provide to the superintendent or headmaster information concerning the child that the Commissioner determines is necessary for the child's rehabilitation or for the protection of the staff or students in the school in which the child is enrolled.
  9. A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00.
  10. Except as provided in subsection (i) of this section, no liability shall attach to any person who transmits, or fails to transmit, the written notice required under this section.

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238.

History

2013. In subsec. (a), substituted "As used in" for "For the purposes of" preceding "this section" to conform to V.S.A. style.

- 2008. In subdiv. (a)(1), substituted "subdivision 5301(7) of Title 13" for "13 V.S.A." for purposes of clarity, to conform reference to V.S.A. style and to correct an apparent error.

Amendments--2009 (Adj. Sess.) Substituted "family division of the superior court" for "family court" in the section heading and in subsec. (b).

§ 5119. Sealing of records.

    1. In matters relating to a child who has been adjudicated delinquent on or after July 1, 1996, the court shall order the sealing of all files and records related to the proceeding if two years have elapsed since the final discharge of the person unless, on motion of the State's Attorney, the court finds: (a) (1)  In matters relating to a child who has been adjudicated delinquent on or after July 1, 1996, the court shall order the sealing of all files and records related to the proceeding if two years have elapsed since the final discharge of the person unless, on motion of the State's Attorney, the court finds:
      1. the person has been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent of such an offense after such initial adjudication, or a proceeding is pending seeking such conviction or adjudication; or
      2. rehabilitation of the person has not been attained to the satisfaction of the court.
    2. At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed pursuant to subdivision (1) of this subsection, the court shall provide such person's name and other identifying information to the State's Attorney in the county in which the person was adjudicated delinquent. The State's Attorney may object, and a hearing may be held to address the State's Attorney's objection.
    3. The order to seal shall include all the files and records relating to the matter in accordance with subsection (d) of this section; however, the court may limit the order to the court files and records only upon good cause shown by the State's Attorney.
    4. The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 1996, but before July 1, 2001, shall be completed by January 1, 2010. The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 2001 but before July 1, 2004, shall be completed by January 1, 2008.
  1. In matters relating to a child who has been adjudicated delinquent prior to July 1, 1996, on application of the child or on the court's own motion and after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:
    1. the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication; and
    2. the person's rehabilitation has been attained to the satisfaction of the court.
  2. On application of a person who, while a child, was found to be in need of care or supervision or, on the court's own motion, after notice to all parties of record and hearing, the court may order the sealing of all files and records related to the proceeding if it finds:
    1. the person has reached the age of majority; and
    2. sealing the person's record is in the interest of justice.
  3. Except as provided in subdivision (a)(3) and subsection (h) of this section or otherwise provided, orders issued in accordance with this section shall include the files and records of the court, law enforcement, prosecution, and the Department for Children and Families related to the specific court proceeding that is the subject of the sealing.
    1. Except as provided in subdivision (2) of this subsection, upon the entry of an order sealing such files and records under this section, the proceedings in the matter shall be considered never to have occurred, all general index references to the sealed record shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter. Copies of the order shall be sent to each agency or official named in the order. (e) (1)  Except as provided in subdivision (2) of this subsection, upon the entry of an order sealing such files and records under this section, the proceedings in the matter shall be considered never to have occurred, all general index references to the sealed record shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter. Copies of the order shall be sent to each agency or official named in the order.
      1. Any court, agency, or department that seals a record pursuant to an order under this section may keep a special index of files and records that have been sealed. This index shall only list the name and date of birth of the subject of the sealed files and records and the docket number of the proceeding that was the subject of the sealing. The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to subsection (f) of this section. (2) (A) Any court, agency, or department that seals a record pursuant to an order under this section may keep a special index of files and records that have been sealed. This index shall only list the name and date of birth of the subject of the sealed files and records and the docket number of the proceeding that was the subject of the sealing. The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to subsection (f) of this section.
      2. Access to the special index shall be restricted to the following persons:
        1. the commissioner and general counsel of any administrative department;
        2. the secretary and general counsel of any administrative agency;
        3. a sheriff;
        4. a police chief;
        5. a State's Attorney;
        6. the Attorney General;
        7. the Director of the Vermont Crime Information Center; and
        8. a designated clerical staff person in each office identified in subdivisions (i)-(vii) of this subdivision (B) who is necessary for establishing and maintaining the indices for persons who are permitted access.
      3. Persons authorized to access an index pursuant to subdivision (B) of this subdivision (2) may access only the index of their own department or agency.
    1. Except as provided in subdivisions (2), (3), (4), and (5) of this subsection, inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of such records, and only to those persons named in the record. (f) (1)  Except as provided in subdivisions (2), (3), (4), and (5) of this subsection, inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of such records, and only to those persons named in the record.
    2. Upon a confidential motion of any department or agency that was required to seal files and records pursuant to subsection (d) of this section, the court may permit the department or agency to inspect its own files and records if it finds circumstances in which the department or agency requires access to such files and records to respond to a legal action, a legal claim, or an administrative action filed against the department or agency in relation to incidents or persons that are the subject of such files and records. The files and records shall be unsealed only for the minimum time necessary to address the circumstances enumerated in this subdivision, at which time the records and files shall be resealed.
    3. Upon a confidential motion of the Department for Children and Families, the court may permit the Department to inspect its own files and records if the court finds extraordinary circumstances in which the State's interest in the protection of a child clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the State's interest. The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling purpose exists to deny notice to the subject of the files and records when considering whether to grant the order. If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the Department provides a compelling reason why the subject of the files and records should not receive notice. The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed.
    4. Upon a confidential motion of a law enforcement officer or prosecuting attorney, the court may permit the department or agency to inspect its own files and records if the court finds extraordinary circumstances in which the State's interest in public safety clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the State's interest. The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling public safety purpose exists to deny notice to the subject of the files and records when considering whether to grant the order. If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the law enforcement officer or prosecuting attorney provides a compelling public safety reason why the subject of the files and records should not receive notice. The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed.
    5. The order unsealing a record pursuant to subdivisions (2), (3), and (4) of this subsection must state whether the record is unsealed entirely or in part and the duration of the unsealing. If the court's order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed or the particular persons who may have access to the record, or both.
    6. If a person is convicted of a sex offense that requires registration pursuant to 13 V.S.A. chapter 167, subchapter 3, the court in which the person was convicted:
      1. May inspect its own files and records included in the sealing order for the purpose of imposing sentence upon or supervising the person for the registrable offense.
      2. Shall examine court indices developed pursuant to subdivision (e)(2)(A) of this section.  If the offender appears on any of the court indices, the court shall unseal any court files and records relating to the juvenile  adjudication and shall make them available to the Commissioner of Corrections for the purposes of preparing a presentence investigation, determining placement, or developing a treatment plan.  The Commissioner shall use only information relating to adjudications relevant to a sex offense conviction.
  4. On application of a person who has pleaded guilty to or has been convicted of the commission of a crime under the laws of this State that the person committed prior to attaining 25 years of age, or on the motion of the court having jurisdiction over such a person, after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:
    1. two years have elapsed since the final discharge of the person;
    2. the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense for 10 years prior to the application or motion, and no new proceeding is pending seeking such conviction or adjudication; and
    3. the person's rehabilitation has been attained to the satisfaction of the court.
    1. In matters relating to a person who was charged with a criminal offense or was the subject of a delinquency petition on or after July 1, 2006, and prior to the person attaining the age of majority, the files and records of the court applicable to the proceeding shall be sealed immediately if the case is dismissed. (h) (1)  In matters relating to a person who was charged with a criminal offense or was the subject of a delinquency petition on or after July 1, 2006, and prior to the person attaining the age of majority, the files and records of the court applicable to the proceeding shall be sealed immediately if the case is dismissed.
    2. In matters relating to a person who was charged with a criminal offense prior to July 1, 2006, and prior to the person attaining the age of majority, the person may apply to seal the files and records of the court applicable to the proceeding. The court shall order the sealing, provided that two years have elapsed since the dismissal of the charge.
  5. Upon receipt of a court order to seal a record relating to an offense for which there is an identifiable victim, a State's Attorney shall record the name and date of birth of the victim, the offense, and the date of the offense. The name and any identifying information regarding the defendant shall not be recorded. Victim information retained by a State's Attorney pursuant to this subsection shall be available only to victims' advocates, the Victims' Compensation Program, and the victim and shall otherwise be confidential.
  6. For purposes of this section, to "seal" a file or record means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record. A "sealed" file or record is retained and shall not be destroyed unless a court issues an order to expunge the record.
  7. The court shall provide assistance to persons who seek to file an application for sealing under this section.

    ( l ) Any entities subject to sealing orders pursuant to this section shall establish policies for implementing this section and shall provide a copy of such policies to the House and Senate Committees on Judiciary not later than January 15, 2007. State's Attorneys, sheriffs, municipal police, and the Judiciary are encouraged to adopt a consistent policy that may apply to each of their independent offices and may submit one policy to the General Assembly.

    (m) Notwithstanding the provisions of this section, a criminal record may not be sealed if restitution and surcharges are owed, provided that payment of surcharges shall not be required if the surcharges have been waived by the court pursuant to 13 V.S.A. § 7282 .

    Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009; amended 2009, No. 1 , § 34; 2011, No. 16 , § 3, eff. May 9, 2011; 2019, No. 40 , § 5; 2019, No. 167 (Adj. Sess.), § 23, eff. Oct. 7, 2020; 2021, No. 58 , § 3.

History

Amendments--2021. Subdiv. (e)(1): Deleted "under this act" following "proceedings in the matter" and substituted "to the sealed record" for "thereto".

Subdiv. (e)(2)(A): Substituted "that" for "which" in the second sentence.

Subsec. (g): Substituted "that" for "which" and substituted "25 years of age" for "the age of 21".

Subdiv. (g)(2): Substituted "for 10 years prior to the application or motion" for "after the initial conviction".

Amendments--2019 (Adj. Sess.). Subsec. (m): Added.

Amendments--2019. Subdiv. (h)(1): inserted "or was the subject of a delinquency petition" following "criminal offense".

Amendments--2011. Subsec. (g): Deleted "committed" following "crime"; inserted "which the person committed" preceding "prior" and substituted "21" for "majority" following "age of".

Amendments--2009. Subdiv. (f)(1): Deleted "and" preceding "(4)" and inserted ", and (5)" following "(4)".

Subdiv. (f)(5): Inserted "pursuant to subdivisions (2), (3), and (4) of this subsection" following "record".

Subdiv. (f)(6): Added.

ANNOTATIONS

Analysis

1. Motion to correct.

Court correctly denied defendant's motion to correct the record by amending his third driving under the influence conviction to appear as first driving under the influence because 33 V.S.A. § 5119(g) allowed a defendant to make a motion to seal, not to make a motion to correct the record. State v. Rosenfield, 201 Vt. 383, 142 A.3d 1069 (2016).

2. Denial improper.

Denial of defendant's motion to seal the record of his 2001 conviction for lewd and lascivious conduct with a child was error, as he committed the crime before he was 21 years old and more than two years had elapsed, but remand was appropriate as the trial court had made no finding as to whether defendant was rehabilitated. State v. Villeneuve, 202 Vt. 495, 150 A.3d 622 (2016).

3. Interpretation.

Based on rules of statutory construction, the sealing of records of a conviction for a crime that was committed before an applicant turned 21 years of age was statutorily permitted as long as the applicant had not been convicted of a listed crime or adjudicated delinquent of a listed crime since the original conviction, even if the conviction sought to be sealed was for a listed crime. State v. Villeneuve, 202 Vt. 495, 150 A.3d 622 (2016).

§ 5120. Indian Child Welfare Act.

The federal Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., governs any proceeding under this title that pertains to an Indian child, as defined by the Indian Child Welfare Act, and prevails over any inconsistent provision of this title.

Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

§ 5121. Case planning process.

The Department shall actively engage families, and solicit and integrate into the case plan the input of the child, the child's family, relatives, and other persons with a significant relationship to the child. Whenever possible, parents, guardians, and custodians shall participate in the development of the case plan.

Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

§ 5122. Misconduct during court proceedings.

A person who engages in misconduct while participating in a court proceeding under the juvenile judicial proceedings chapters may be subject to appropriate sanctions, including criminal charges, as provided by relevant law, regulation, rule, or employment policy. The confidentiality requirements of subsection 5110(c) of this title shall not apply to the extent necessary to report and respond to allegations of misconduct under the juvenile judicial proceedings chapters. This section shall not be construed to create a private right of action or a waiver of sovereign immunity.

Added 2007, No. 185 (Adj. Sess.), § 1, eff. Jan. 1, 2009.

§ 5123. Transportation of a child.

  1. The Commissioner for Children and Families shall ensure that all reasonable and appropriate measures consistent with public safety are made to transport or escort a child subject to this chapter in a manner that:
    1. reasonably avoids physical and psychological trauma;
    2. respects the privacy of the child; and
    3. represents the least restrictive means necessary for the safety of the child.
  2. The Commissioner for Children and Families shall have the authority to select the person or persons who may transport a child under the Commissioner's care and custody.
  3. The Commissioner shall ensure supervisory review of every decision to transport a child using mechanical restraints. When transportation with restraints for a particular child is approved, the reasons for the approval shall be documented in writing.
  4. It is the policy of the State of Vermont that mechanical restraints are not routinely used on children subject to this chapter unless circumstances dictate that such methods are necessary.

    Added 2009, No. 28 , § 2, eff. May 21, 2009.

§ 5124. Postadoption contact agreements.

  1. Either or both parents and each intended adoptive parent may enter into a postadoption contact agreement regarding communication or contact between either or both parents and the child after the finalization of an adoption by the intended adoptive parent or parents who are parties to the agreement. Such an agreement may be entered into if:
    1. the child is in the custody of:
      1. the Department for Children and Families; or
      2. a nonparent pursuant to subdivision 5318(a)(2) or (a)(7) or subdivision 5232(b)(2) or (b)(3) of this title;
    2. an order terminating parental rights has not yet been entered; and
    3. either or both parents agree to a voluntary termination of parental rights, including an agreement in a case that began as an involuntary termination of parental rights.
  2. The court shall approve the postadoption contact agreement if:
      1. it determines that the child's best interests will be served by postadoption communication or contact with either or both parents; and (1) (A) it determines that the child's best interests will be served by postadoption communication or contact with either or both parents; and
      2. in making a best interests determination, it may consider:
        1. the age of the child;
        2. the length of time that the child has been under the actual care, custody, and control of a person other than a parent;
        3. the desires of the child, the child's parents, and the child's intended adoptive parents;
        4. the child's relationship with and the interrelationships between the child's parents, the child's intended adoptive parents, the child's siblings, and any other person with a significant relationship with the child;
        5. the willingness of the parents to respect the bond between the child and the child's intended adoptive parents;
        6. the willingness of the intended adoptive parents to respect the bond between the child and the parents;
        7. the adjustment to the child's home, school, and community;
        8. any evidence of abuse or neglect of the child;
        9. the recommendation of any guardian ad litem;
        10. the recommendation of a therapist or mental health care provider working directly with the child; and
        11. the recommendation of the Department;
    1. it has reviewed and made each of the following a part of the court record:
      1. a sworn affidavit by the parties to the agreement that affirmatively states that the agreement was entered into knowingly and voluntarily and is not the product of coercion, fraud, or duress and that the parties have not relied on any representations other than those contained in the agreement;
      2. a written acknowledgment by each parent that the termination of parental rights is irrevocable, even if the intended adoption is not finalized, the adoptive parents do not abide by the postadoption contact agreement, or the adoption is later dissolved;
      3. an agreement to the postadoption contact or communication from the child to be adopted, if he or she is 14 years of age or older; and
      4. an agreement to the postadoption contact or communication in writing from the Department, the guardian ad litem, and the attorney for the child.
  3. A postadoption contact agreement must be in writing and signed by each parent and each intended adoptive parent entering into the agreement. There may be separate agreements for each parent. The agreement shall specify:
    1. the form of communication or contact to take place;
    2. the frequency of the communication or contact;
    3. if visits are agreed to, whether supervision shall be required, and if supervision is required, what type of supervision shall be required;
    4. if written communication or exchange of information is agreed upon, whether that will occur directly or through the Vermont Adoption Registry, set forth in 15A V.S.A. § 6-103;
    5. if the Adoption Registry shall act as an intermediary for written communication, that the signing parties will keep their addresses updated with the Adoption Registry;
    6. that failure to provide contact due to the child's illness or other good cause shall not constitute grounds for an enforcement proceeding;
    7. that the right of the signing parties to change their residence is not impaired by the agreement;
    8. an acknowledgment by the intended adoptive parents that the agreement grants either or both parents the right to seek to enforce the postadoption contact agreement;
    9. an acknowledgment that the adoptive parent's judgment regarding the child is in the child's best interests;
    10. the finality of the termination of parental rights and of the adoption shall not be affected by implementation of the provisions of the postadoption contact agreement; and
    11. a disagreement between the parties or litigation brought to enforce or modify the agreement shall not affect the validity of the termination of parental rights or the adoption.
  4. A copy of the order approving the postadoption contact agreement and the postadoption contact agreement shall be filed with the Probate Division of the Superior Court with the petition to adopt filed under 15A V.S.A. Article 3 and, if the agreement specifies a role for the Adoption Registry, with the Registry.
  5. The order approving a postadoption contact agreement shall be a separate order issued before and contingent upon the final order of voluntary termination of parental rights.
  6. The executed postadoption contact agreement shall become final upon legal finalization of an adoption under 15A V.S.A. Article 3.

    Added 2015, No. 60 , § 10; amended 2015, No. 170 (Adj. Sess.), § 5.

History

Amendments--2015 (Adj. Sess.). Subdiv. (a)(1): Added the subdiv. (A) designation and subdiv. (B).

Subdiv. (c)(9): Rewritten.

ANNOTATIONS

1. Protective orders.

When a mother who had voluntarily relinquished her parental rights after entering into a postadoption-contact agreement with the child's grandmother sought a protective order after the agency removed the child from the grandmother's home and placed her with another pre-adoptive foster family, permitting a protective order would be directly inconsistent with the Legislature's more specific and recent recognition that although a postadoption-contact agreement could not be approved unless it served the child's best interests, any parent who was a party to such an agreement had to acknowledge that the termination of that parent's parental rights was final even if the adoption or expected contact did not occur. In re P.K., 204 Vt. 102, 164 A.3d 665 (Jan. 6, 2017).

§ 5125. Reinstatement of parental rights.

  1. Petition for reinstatement.
    1. A petition for reinstatement of parental rights may be filed by the Department for Children and Families on behalf of a child in the custody of the Department under the following conditions:
      1. the child's adoption has been dissolved; or
      2. the child has not been adopted after at least three years from the date of the court order terminating parental rights.
    2. The child, if 14 years of age or older, may also file a petition to reinstate parental rights if the adoption has been dissolved, or if parental rights have been terminated and the child has not been adopted after three years from the date of the court order terminating parental rights. This section shall not apply to children who have been placed under permanent guardianship pursuant to 14 V.S.A. § 2664 .
  2. Permanency plan.  The Department shall file an updated permanency plan with the petition for reinstatement. The updated plan shall address the material change in circumstances since the termination of parental rights, the Department's efforts to achieve permanency, the reasons for the parent's desire to have rights reinstated, any statements by the child expressing the child's opinions about reinstatement, and the parent's present ability and willingness to resume or assume parental duties.
  3. Hearing.
    1. The court shall hold a hearing to consider whether reinstatement is in the child's best interests. The court shall conditionally grant the petition if it finds by clear and convincing evidence that:
      1. the parent is presently willing and has the ability to provide for the child's present and future safety, care, protection, education, and healthy mental, physical, and social development;
      2. reinstatement is the child's express preference;
      3. if the child is 14 years of age or older and has filed the petition, the child is of sufficient maturity to understand the nature of this decision;
      4. the child has not been adopted, or the adoption has been dissolved;
      5. the child is not likely to be adopted; and
      6. reinstatement of parental rights is in the best interests of the child.
    2. Upon a finding by clear and convincing evidence that all conditions set forth in subdivision (1) of this subsection exist and that reinstatement of parental rights is in the child's best interests, the court shall issue a conditional custody order for up to six months transferring temporary legal custody of the child to the parent, subject to conditions as the court may deem necessary and sufficient to ensure the child's safety and well-being. The court may order the Department to provide transition services to the family as appropriate. If during this time period the child is removed from the parent's temporary conditional custody due to allegations of abuse or neglect, the court shall dismiss the petition for reinstatement of parental rights if the court finds the allegations have been proven by a preponderance of the evidence.
  4. Final order.  After the child is placed with the parent for up to six months pursuant to subsection (c) of this section, the court shall hold a hearing to determine if the placement has been successful. The court shall enter a final order of reinstatement of parental rights upon a finding by a preponderance of the evidence that placement continues to be in the child's best interests.
  5. Effect of reinstatement.  Reinstatement of parental rights does not vacate or otherwise affect the validity of the original order terminating parental rights. Reinstatement restores a parent's legal rights to his or her child, including all rights, powers, privileges, immunities, duties, and obligations that were terminated by the court in the termination of parental rights order. Such reinstatement shall be a recognition that the parent's and child's situations have changed since the time of the termination of parental rights, and reunification is appropriate. An order reinstating the legal parent and child relationship as to one parent of the child has no effect on the legal rights of any other parent whose rights to the child have been terminated by the court; or the legal sibling relationship between the child and any other children of the parent. A parent whose rights are reinstated pursuant to this section is not liable for child support owed to the Department during the period from termination of parental rights to reinstatement.

    Added 2015, No. 170 (Adj. Sess.), § 12, eff. Sept. 1, 2016.

CHAPTER 52. DELINQUENCY PROCEEDINGS

History

Effective date; applicability. 2007, No. 185 (Adj. Sess.), § 14 provides: "This act [which enacted this chapter] shall take effect January 1, 2009 and shall apply to any petition filed after the effective date or any permanency review hearing held after the effective date."

Subchapter 1. Commencement of Proceedings.

§ 5201. Commencement of delinquency proceedings.

  1. Proceedings under this chapter shall be commenced by:
    1. transfer to the court of a proceeding from another court as provided in section 5203 of this title; or
    2. the filing of a delinquency petition by a State's Attorney.
  2. If the proceeding is commenced by transfer from another court, no petition need be filed; however, the State's Attorney shall provide to the court the name and address of the child's custodial parent, guardian, or custodian and the name and address of any noncustodial parent if known.
  3. Any proceeding concerning a child who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining 14 years of age, but not 22 years of age, shall originate in the Criminal Division of the Superior Court, provided that jurisdiction may be transferred in accordance with this chapter and chapter 52A of this title, unless the State's Attorney files the charge directly as a youthful offender petition in the Family Division.
  4. Subsection (d) effective until July 1, 2022; see also subsection (d) effective July 1, 2022 set out below.  Any proceeding concerning a child who is alleged to have committed any offense other than those specified in subsection 5204(a) of this title before attaining 19 years of age shall originate in the Family Division of the Superior Court, provided that jurisdiction may be transferred in accordance with this chapter.

    (d) Subsection (d) effective July 1, 2022; see also subsection (d) effective until July 1, 2022 set out above. Any proceeding concerning a child who is alleged to have committed any offense other than those specified in subsection 5204(a) of this title before attaining 20 years of age shall originate in the Family Division of the Superior Court, provided that jurisdiction may be transferred in accordance with this chapter.

  5. [Repealed.]
  6. If the State requests that custody of the child be transferred to the Department, a temporary care hearing shall be held as provided in subchapter 3 of this chapter.
  7. A petition may be withdrawn by the State's Attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 159 (Adj. Sess.), § 2; 2015, No. 153 (Adj. Sess.), § 9, eff. Jan. 1, 2017; 2017, No. 201 (Adj. Sess.), § 13, eff. July 1, 2020; 2017, No. 201 (Adj. Sess.), § 17, eff. July 1, 2022; 2019, No. 45 , § 3, eff. May 30, 2019.

History

Amendments--2019. Subsec. (c): Substituted "22 years of age" for "18 years of age", and added "chapter 52A of this title, unless the State's Attorney files the charge directly as a youthful offender petition in the Family Division" at the end.

Amendments--2017 (Adj. Sess.). Subsec. (d): Amended generally by Act 201, § 13.

Subsec. (d): Act 201, § 17 substituted "20" for "19" preceding "years".

Subsec. (e): Repealed by Act 201, § 13.

Amendments--2015 (Adj. Sess.). Act No. 153 (Adj. Sess.), § 9, effective January 1, 2017, deleted "Consistent with applicable provisions of Title 4" preceding "any proceeding", substituted "14 years of age" for "the age of 14" and "18 years of age" for "the age of 18" in subsec. (c), added new subsecs. (d) and (e), and redesignated former subsecs. (d) and (e) as subsecs. (f) and (g).

Act No. 153 (Adj. Sess.), § 7, effective January 1, 2018, substituted "18 years" for "17 years" in subsecs. (d) and (e).

Amendments--2011 (Adj. Sess.). Subsec. (c): Substituted "originate in the criminal division of the superior court" for "originate in district or superior court".

§ 5202. Order of adjudication; noncriminal.

    1. An order of the Family Division of the Superior Court in proceedings under this chapter shall not: (a) (1)  An order of the Family Division of the Superior Court in proceedings under this chapter shall not:
      1. be deemed a conviction of crime;
      2. impose any civil disabilities sanctions ordinarily resulting from a conviction; or
      3. operate to disqualify the child in any civil service application or appointment.
    2. Notwithstanding subdivision (1) of this subsection, an order of delinquency in proceedings concerning a child who is alleged to have committed a violation of those sections specified in 23 V.S.A. § 801(a)(1) shall be an event in addition to those specified therein, enabling the Commissioner of Motor Vehicles to require proof of financial responsibility under 23 V.S.A. chapter 11.
  1. The disposition of a child and evidence given in a hearing in a juvenile proceeding shall not be admissible as evidence against the child in any case or proceeding in any other court except after a subsequent conviction of a felony in proceedings to determine the sentence.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2017, No. 201 (Adj. Sess.), § 14, eff. July 1, 2020.

History

2013. In subdiv. (a)(1), substituted "Family Division of the Superior Court" for "juvenile court."

Amendments--2017 (Adj. Sess.) Subdiv. (a)(2): Amended generally.

§ 5203. Transfer from other courts.

  1. Subsection (a) effective until July 1, 2022; see also subsection (a) effective July 1, 2022 set out below.  If it appears to a Criminal Division of the Superior Court that the defendant was under 19 years of age at the time the offense charged was alleged to have been committed and the offense charged is an offense not specified in subsection 5204(a) of this title, that court shall forthwith transfer the proceeding to the Family Division of the Superior Court under the authority of this chapter, and the minor shall then be considered to be subject to this chapter as a child charged with a delinquent act.

    (a) Subsection (a) effective July 1, 2022; see also subsection (a) effective until July 1, 2022 set out above. If it appears to a Criminal Division of the Superior Court that the defendant was under 20 years of age at the time the offense charged was alleged to have been committed and the offense charged is an offense not specified in subsection 5204(a) of this title, that court shall forthwith transfer the proceeding to the Family Division of the Superior Court under the authority of this chapter, and the minor shall then be considered to be subject to this chapter as a child charged with a delinquent act.

  2. If it appears to a Criminal Division of the Superior Court that the defendant had attained 14 years of age but not 18 years of age at the time an offense specified in subsection 5204(a) of this title was alleged to have been committed, that court may forthwith transfer the proceeding to the Family Division of the Superior Court under the authority of this chapter, and the minor shall then be considered to be subject to this chapter as a child charged with a delinquent act.
  3. Subsection (c) effective until July 1, 2022; see also subsection (c) effective July 1, 2022 set out below.  If it appears to the State's Attorney that the defendant was under 19 years of age at the time the felony offense charged was alleged to have been committed and the felony charged is not an offense specified in subsection 5204(a) of this title, the State's Attorney shall file charges in the Family Division of the Superior Court, pursuant to section 5201 of this title. The Family Division may transfer the proceeding to the Criminal Division pursuant to section 5204 of this title.

    (c) Subsection (c) effective July 1, 2022; see also subsection (c) effective until July 1, 2022 set out above. If it appears to the State's Attorney that the defendant was under 20 years of age at the time the felony offense charged was alleged to have been committed and the felony charged is not an offense specified in subsection 5204(a) of this title, the State's Attorney shall file charges in the Family Division of the Superior Court, pursuant to section 5201 of this title. The Family Division may transfer the proceeding to the Criminal Division pursuant to section 5204 of this title.

  4. A transfer under this section shall include a transfer and delivery of a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. Upon any such transfer, that court shall order that the defendant be taken forthwith to a place of detention designated by the Family Division of the Superior Court or to that court itself, or shall release the child to the custody of his or her parent or guardian or other person legally responsible for the child, to be brought before the Family Division of the Superior Court at a time designated by that court. The Family Division of the Superior Court shall then proceed as provided in this chapter as if a petition alleging delinquency had been filed with the court under section 5223 of this title on the effective date of such transfer.
  5. Motions to transfer a case to the Family Division of the Superior Court for youthful offender treatment shall be made under section 5281 of this title.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), §§ 226, 238; 2011, No. 159 (Adj. Sess.), § 3; 2015, No. 153 (Adj. Sess.), § 10, eff. Jan. 1, 2017; 2017, No. 201 (Adj. Sess.), § 7, eff. May 30, 2018; 2017, No. 201 (Adj. Sess.), § 15, eff. July 1, 2020; 2017, No. 201 (Adj. Sess.), § 18, eff. July 1, 2022.

History

Amendments--2017 (Adj. Sess.). Subsecs. (a), (b): Amended generally by Act 201, § 7.

Subsec. (a): Act 201, § 15 substituted "19" for "18" preceding "years".

Subsec. (a): Act 201, § 18 substituted "20" for "19" preceding "years".

Subsec. (c): Act 201, § 15 substituted "19" for "18" preceding "years"; inserted ", pursuant to section 5201 of this title" following "Court" and added the second sentence.

Subsec. (c): Act 201, § 18 substituted "20" for "19" preceding "years".

Amendments--2015 (Adj. Sess.). Act No. 153 (Adj. Sess.), § 10, effective January 1, 2017, amended section generally.

Act No. 153 (Adj. Sess.), § 8, effective January 1, 2018, substituted "18 years of age" for "17 years of age" in subsecs. (a) and (b), and "under 18 years" for "16 years" in subsec. (c).

Amendments--2011 (Adj. Sess.). Substituted "family division of the superior court" for "juvenile court" throughout the section; and substituted "file charges in the family or criminal division" for "file charges in a juvenile court or the criminal division" in subsec. (c).

Amendments--2009 (Adj. Sess.) Subsecs. (a)-(c): Substituted "criminal division of the superior court" for "district court".

Subsec. (e): Inserted "the" preceding "family" and inserted "division of the superior" thereafter.

§ 5204. Transfer from Family Division of the Superior Court.

  1. Subsection (a) effective until July 1, 2022; see also subsection (a) effective July 1, 2022 set out below.  After a petition has been filed alleging delinquency, upon motion of the State's Attorney and after hearing, the Family Division of the Superior Court may transfer jurisdiction of the proceeding to the Criminal Division of the Superior Court, if the child had attained 16 years of age but not 19 years of age at the time the act was alleged to have occurred and the delinquent act set forth in the petition is a felony not specified in subdivisions (1)-(12) of this subsection or if the child had attained 12 years of age but not 14 years of age at the time the act was alleged to have occurred, and if the delinquent act set forth in the petition was any of the following:

    (a) Subsection (a) effective July 1, 2022; see also subsection (a) effective until July 1, 2022 set out above. After a petition has been filed alleging delinquency, upon motion of the State's Attorney and after hearing, the Family Division of the Superior Court may transfer jurisdiction of the proceeding to the Criminal Division of the Superior Court, if the child had attained 16 years of age but not 20 years of age at the time the act was alleged to have occurred and the delinquent act set forth in the petition is a felony not specified in subdivisions (1)-(12) of this subsection or if the child had attained 12 years of age but not 14 years of age at the time the act was alleged to have occurred, and if the delinquent act set forth in the petition was any of the following:

    1. arson causing death as defined in 13 V.S.A. § 501 ;
    2. assault and robbery with a dangerous weapon as defined in 13 V.S.A. § 608(b) ;
    3. assault and robbery causing bodily injury as defined in 13 V.S.A. § 608(c) ;
    4. aggravated assault as defined in 13 V.S.A. § 1024 ;
    5. murder as defined in 13 V.S.A. § 2301 ;
    6. manslaughter as defined in 13 V.S.A. § 2304 ;
    7. kidnapping as defined in 13 V.S.A. § 2405 ;
    8. unlawful restraint as defined in 13 V.S.A. § 2406 or 2407;
    9. maiming as defined in 13 V.S.A. § 2701 ;
    10. sexual assault as defined in 13 V.S.A. § 3252(a)(1) or (a)(2);
    11. aggravated sexual assault as defined in 13 V.S.A. § 3253 ; or
    12. burglary into an occupied dwelling as defined in 13 V.S.A. § 1201(c) .
  2. The State's Attorney of the county where the juvenile petition is pending may move in the Family Division of the Superior Court for an order transferring jurisdiction under subsection (a) of this section at any time prior to adjudication on the merits. The filing of the motion to transfer jurisdiction shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the Family Division of the Superior Court may deny the motion to transfer jurisdiction.
  3. Upon the filing of a motion to transfer jurisdiction under subsection (b) of this section, the Family Division of the Superior Court shall conduct a hearing in accordance with procedures specified in subchapter 2 of this chapter to determine whether:
    1. there is probable cause to believe that the child committed the charged offense; and
    2. public safety and the interests of the community would not be served by treatment of the child under the provisions of law relating to the Family Division of the Superior Court and delinquent children.
  4. In making its determination as required under subsection (c) of this section, the court may consider, among other matters:
    1. the maturity of the child as determined by consideration of his or her age, home, environment; emotional, psychological, and physical maturity; and relationship with and adjustment to school and the community;
    2. the extent and nature of the child's prior record of delinquency;
    3. the nature of past treatment efforts and the nature of the child's response to them;
    4. whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
    5. the nature of any personal injuries resulting from or intended to be caused by the alleged act;
    6. the prospects for rehabilitation of the child by use of procedures, services, and facilities available through juvenile proceedings;
    7. whether the protection of the community would be better served by transferring jurisdiction from the Family Division to the Criminal Division of the Superior Court.
  5. A transfer under this section shall terminate the jurisdiction of the Family Division of the Superior Court over the child only with respect to those delinquent acts alleged in the petition with respect to which transfer was sought.
    1. The Family Division, following completion of the transfer hearing, shall make findings and, if the court orders transfer of jurisdiction from the Family Division, shall state the reasons for that order. If the Family Division orders transfer of jurisdiction, the child shall be treated as an adult. The State's Attorney shall commence criminal proceedings as in cases commenced against adults. (f) (1)  The Family Division, following completion of the transfer hearing, shall make findings and, if the court orders transfer of jurisdiction from the Family Division, shall state the reasons for that order. If the Family Division orders transfer of jurisdiction, the child shall be treated as an adult. The State's Attorney shall commence criminal proceedings as in cases commenced against adults.
    2. Notwithstanding subdivision (1) of this subsection, the parties may stipulate to a transfer of jurisdiction from the Family Division at any time after a motion to transfer is made pursuant to subsection (b) of this section. The court shall not be required to make findings if the parties stipulate to a transfer pursuant to this subdivision. Upon acceptance of the stipulation to transfer jurisdiction, the court shall transfer the proceedings to the Criminal Division and the child shall be treated as an adult. The State's Attorney shall commence criminal proceedings as in cases commenced against adults.
  6. The order granting or denying transfer of jurisdiction shall constitute a final order within the meaning of Rules 3 and 4 of the Vermont Rules of Appellate Procedure.
  7. If a person who has not attained 16 years of age at the time of the alleged offense has been prosecuted as an adult and is not convicted of one of the acts listed in subsection (a) of this section but is convicted only of one or more lesser offenses, jurisdiction shall be transferred to the Family Division of the Superior Court for disposition. A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of crime, and the entire matter shall be treated as if it had remained in the Family Division throughout. In case of an acquittal for a matter specified in this subsection and in case of a transfer to the Family Division under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.
  8. If a juvenile 16 years of age or older has been prosecuted as an adult for an offense not listed in subsection (a) of this section and is not convicted of a felony, but is convicted of a lesser included misdemeanor, jurisdiction shall be transferred to the Family Division of the Superior Court for disposition. A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of a crime, and the entire matter shall be treated as if it had remained in the Family Division throughout. In case of an acquittal for a matter specified in this subsection and in case of a transfer to the Family Division under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.
  9. The record of a hearing conducted under subsection (c) of this section and any related files shall be open to inspection only by persons specified in subsections 5117(b) and (c) of this title in accordance with section 5119 of this title and by the attorney for the child.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238; 2011, No. 159 (Adj. Sess.), § 4; 2015, No. 153 (Adj. Sess.), § 11, eff. January 1, 2017; 2015, No. 153 (Adj. Sess.), § 12; 2017, No. 201 (Adj. Sess.), § 16, eff. July 1, 2020; 2017, No. 201 (Adj. Sess.), § 19, eff. July 1, 2022.

History

2013. Substituted "Family Division of the Superior Court" for "juvenile court" throughout the section.

Amendments--2017 (Adj. Sess.). Subsec. (a): Act 201, § 16 substituted "19" for "18" preceding "years".

Subsec. (a): Act 201, § 19 substituted "20" for "19" preceding "years".

Amendments--2015 (Adj. Sess.). Act No. 153 (Adj. Sess.), § 11, effective January 1, 2017, substituted "was not one of those specified in subdivisions (1)-(12) of this subsection" for "is a felony not specified in subdivisions (1)-(12) of this subsection" in subsec. (a), added new subsec. (i) and redesignated former subsec. (i) as subsec. (j).

Act No. 153 (Adj. Sess.), § 12, effective January 1, 2016, substituted "16 years of age" for "the age of 16", "18 years of age" for "the age of 18", "12 years of age" for "the age of 10", and "14 years of age" for "the age of 14" in subsec. (a), "an act listed in subsection (a) of this section" for "the charged offense" in subdiv. (c)(1), deleted "judgment or" following "a final" in subsec. (g), and substituted "16 years of age" for "the age of 16" in the first sentence in subsec. (h).

Amendments--2011 (Adj. Sess.). Amended the section generally.

Amendments--2009 (Adj. Sess.) Substituted "criminal division of the superior court" for "district court" in the introductory paragraph of subsec. (a) and in subdiv. (d)(7).

§ 5204a. Jurisdiction over adult defendant for crime committed when defendant was under 19 years of age.

  1. A proceeding may be commenced in the Family Division against a defendant who has attained 18 years of age if:
    1. the petition alleges that the defendant:
      1. before attaining 19 years of age, violated a crime listed in subsection 5204(a) of this title;
      2. after attaining 14 years of age but before attaining 19 years of age, committed an offense listed in 13 V.S.A. § 5301(7) but not listed in subsection 5204(a) of this title; or
      3. after attaining 17 years of age but before attaining 19 years of age, committed any offense not listed in 13 V.S.A. § 5301(7) or subsection 5204(a) of this title, provided the petition is filed prior to the defendant's 19th birthday;
    2. a juvenile petition was never filed based upon the alleged conduct; and
    3. the statute of limitations has not tolled on the crime that the defendant is alleged to have committed.
    1. The Family Division shall, except as provided in subdivision (2) of this subsection, transfer a petition filed pursuant to subdivision (a)(1)(A) of this section to the Criminal Division if the Family Division finds that: (b) (1)  The Family Division shall, except as provided in subdivision (2) of this subsection, transfer a petition filed pursuant to subdivision (a)(1)(A) of this section to the Criminal Division if the Family Division finds that:
      1. there is probable cause to believe that while the defendant was less than 19 years of age he or she committed an act listed in subsection 5204(a) of this title;
      2. there was good cause for not filing a delinquency petition in the Family Division when the defendant was less than 19 years of age;
      3. there has not been an unreasonable delay in filing the petition; and
      4. transfer would be in the interest of justice and public safety.
      1. If a petition has been filed pursuant to subdivision (a)(1)(A) of this section, the Family Division may order that the defendant be treated as a youthful offender consistent with the applicable provisions of chapter 52A of this title if the defendant is under 22 years of age and the Family Division: (2) (A) If a petition has been filed pursuant to subdivision (a)(1)(A) of this section, the Family Division may order that the defendant be treated as a youthful offender consistent with the applicable provisions of chapter 52A of this title if the defendant is under 22 years of age and the Family Division:
        1. makes the findings required by subdivisions (1)(A), (B), and (C) of this subsection (b);
        2. finds that the youth is amenable to treatment or rehabilitation as a youthful offender; and
        3. finds that there are sufficient services in the Family Division system and the Department for Children and Families or the Department of Corrections to meet the youth's treatment and rehabilitation needs.
      2. If the Family Division orders that the defendant be treated as a youthful offender, the court shall approve a disposition case plan and impose conditions of probation on the defendant.
      3. If the Family Division finds after hearing that the defendant has violated the terms of his or her probation, the Family Division may:
        1. maintain the defendant's status as a youthful offender, with modified conditions of probation if the court deems it appropriate; or
        2. revoke the defendant's youthful offender status and transfer the petition to the Criminal Division pursuant to subdivision (1) of this subsection (b).
    2. The Family Division shall in all respects treat a petition filed pursuant to subdivision (a)(1)(B) of this section in the same manner as a petition filed pursuant to section 5201 of this title, except that the Family Division's jurisdiction shall end on or before the defendant's 22nd birthday, if the Family Division:
      1. finds that there is probable cause to believe that, after attaining 14 years of age but before attaining 19 years of age, the defendant committed an offense listed in 13 V.S.A. § 5301(7) but not listed in subsection 5204(a) of this title; and
      2. makes the findings required by subdivisions (b)(1)(B) and (C) of this section.
    3. In making the determination required by subdivision (1)(D) of this subsection, the court may consider, among other matters:
      1. the maturity of the defendant as determined by consideration of his or her age; home; environment; emotional, psychological, and physical maturity; and relationship with and adjustment to school and the community;
      2. the extent and nature of the defendant's prior criminal record and record of delinquency;
      3. the nature of past treatment efforts and the nature of the defendant's response to them;
      4. whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
      5. the nature of any personal injuries resulting from or intended to be caused by the alleged act;
      6. whether the protection of the community would be best served by transferring jurisdiction from the Family Division to the Criminal Division of the Superior Court.
  2. If the Family Division does not transfer a petition filed pursuant to subdivision (a)(1)(A) of this section to the Criminal Division or order that the defendant be treated as a youthful offender pursuant to subsection (b) of this section, the petition shall be dismissed.
    1. The Family Division shall treat a petition filed pursuant to subdivision (a)(1)(C) of this section in all respects in the same manner as a petition filed pursuant to section 5201 of this title if the court: (d) (1)  The Family Division shall treat a petition filed pursuant to subdivision (a)(1)(C) of this section in all respects in the same manner as a petition filed pursuant to section 5201 of this title if the court:
      1. finds that there is probable cause to believe that, after attaining 17 years of age but before attaining 18 years of age, the defendant committed an offense not listed in 13 V.S.A. § 5301(7) or subsection 5204(a) of this title; and
      2. makes the findings required by subdivisions (b)(1)(B) and (C) of this section.
    2. The Family Division's jurisdiction over cases filed pursuant to subdivision (a)(1)(C) of this section shall end on or before the defendant's 20th birthday.

      Added 2011, No. 16 , § 2, eff. May 9, 2011; amended 2019, No. 77 , § 23, eff. June 19, 2019; 2019, No. 124 (Adj. Sess.), § 5; 2021, No. 65 , § 16, eff. June 7, 2021.

History

Amendments--2021 Section heading: Substituted "19" for "18".

Subdivs. (a)(1)(A)-(C), (b)(1)(A)-(B), (b)(3)(A): Substituted "19" for "18".

Subdiv. (a)(1)(C): Substituted "provided" for "as long as".

Subdiv. (b)(2)(A): Substituted "22" for "23".

Amendments--2019 (Adj. Sess.). Section heading: Deleted "age" following "under" and added "years of age".

Subdiv. (a)(1)(C): Added.

Subsec. (d): Added.

Amendments--2019. Subsec. (a): Added the subdiv. (A) designation, substituted "18 years of age" for "the age of 18" in the introductory language and subdiv. (A), added "or" at the end of subdiv (A), and added subdiv. (B).

Subdiv. (b)(1): Substituted "subdivision (a)(1)(A)" for "subsection (a)".

Subdiv. (b)(2)(A): Substituted "If a petition has been filed pursuant to subdivision (a)(1)(A) of this section" for "The" at the beginning, and "chapter 52A of this title" for "subchapter 5 of chapter 52 of this title".

Subdiv. (b)(3): Added.

Subdiv. (b)(4): Added the designation.

Subsec. (c): Substituted "a petition filed pursuant to subdivision (a)(1)(A)" for "the case".

Youthful offenders; legislative intent. 2013, No. 165 (Adj. Sess.), § 1 provides: "The maximum age at which a person may be treated as a youthful offender varies under two different statutes under 33 V.S.A. chapters 51 and 52. A person may be treated as a youthful offender until the person reaches 22 years of age under 33 V.S.A. § 5104(a); however, in some circumstances, a person may be treated as a youthful offender until the person reaches 23 years of age under 33 V.S.A. § 5204a(b)(2)(A). This distinction is intentional."

ANNOTATIONS

1. Construction.

Legislature's attempt to clarify the law in 2011 after defendant was charged created an entirely new jurisdictional statute providing procedures for adjudicating delinquency petitions involving adult defendants where none existed before. The new statute was plainly inconsistent with the prior law and could not be considered merely a clarification of what a previous Legislature had intended the statute to mean. In re D.K., 191 Vt. 328, 47 A.3d 347 (2012).

§ 5205. Fingerprints; photographs.

  1. Fingerprint files of a child under the jurisdiction of the court shall be kept separate from those of other persons under special security measures. Inspection of such files shall be limited to law enforcement officers only on a need-to-know basis unless otherwise authorized by the court in individual cases.
  2. Copies of fingerprints shall be maintained on a local basis only and not sent to central State or federal depositories except in national security cases.
  3. Fingerprints of persons under the jurisdiction of the court shall be removed and destroyed when:
    1. the petition alleging delinquency with respect to which such fingerprints were taken does not result in an adjudication of delinquency; or
    2. jurisdiction of the court is terminated, provided that there has been no record of a criminal offense by the child after reaching 16 years of age.
  4. If latent prints are found at the scene of an offense and there is reason to believe that a particular child was involved, the child may be fingerprinted for purposes of immediate comparison, and, if the result is negative, the fingerprint card shall be immediately destroyed.
  5. No photograph shall be taken of any child when taken into custody without the consent of the judge unless the case is transferred for criminal proceeding.
  6. A person who violates this section shall be imprisoned not more than six months or fined not more than $500.00, or both.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 23 , § 15.

History

Amendments--2015. Subsec. (a): Added a period and "Inspection of such files shall be" following "measures" and deleted "inspection by" preceding "law enforcement".

§ 5206. Citation of 16- to 18-year-olds. Section 5206 effective until July 1, 2022; see also section 5206 effective July 1, 2022 set out below.

    1. If a child was over 16 years of age and under 19 years of age at the time the offense was alleged to have been committed and the offense is not specified in subsection (b) of this section, law enforcement shall cite the child to the Family Division of the Superior Court. (a) (1)  If a child was over 16 years of age and under 19 years of age at the time the offense was alleged to have been committed and the offense is not specified in subsection (b) of this section, law enforcement shall cite the child to the Family Division of the Superior Court.
    2. If, after the child is cited to the Family Division, the State's Attorney chooses to file the charge in the Criminal Division of the Superior Court, the State's Attorney shall state in the information the reason why filing in the Criminal Division is in the interest of justice.
  1. Offenses for which a law enforcement officer is not required to cite a child to the Family Division of the Superior Court shall include:
    1. 23 V.S.A. §§ 674 (driving while license suspended or revoked), 1128 (accidents\-duty to stop), and 1133 (eluding a police officer);
    2. fish and wildlife offenses that are not minor violations as defined by 10 V.S.A. § 4572 ; and
    3. an offense listed in subsection 5204(a) of this title.

      Added 2015, No. 153 (Adj. Sess.), § 17; amended 2019, No. 124 (Adj. Sess.), § 6.

History

Amendments--2019 (Adj. Sess.). Section heading: Act No. 124, § 6 substituted "to 18-year-olds" for "and 17-year-olds".

Subdiv. (a)(1): Act No. 124, § 6 substituted "19" for "18".

Subsec. (b): Deleted subdiv. (b)(3) and redesignated subdiv. (b)(4) as (b)(3).

§ 5206. Citation of 16- to 19-year-olds. Section 5206 effective July 1, 2022; see also section 5206 effective until July 1, 2022 set out above.

    1. If a child was over 16 years of age and under 20 years of age at the time the offense was alleged to have been committed and the offense is not specified in subsection (b) of this section, law enforcement shall cite the child to the Family Division of the Superior Court. (a) (1)  If a child was over 16 years of age and under 20 years of age at the time the offense was alleged to have been committed and the offense is not specified in subsection (b) of this section, law enforcement shall cite the child to the Family Division of the Superior Court.
    2. If, after the child is cited to the Family Division, the State's Attorney chooses to file the charge in the Criminal Division of the Superior Court, the State's Attorney shall state in the information the reason why filing in the Criminal Division is in the interest of justice.
  1. Offenses for which a law enforcement officer is not required to cite a child to the Family Division of the Superior Court shall include:
    1. 23 V.S.A. §§ 674 (driving while license suspended or revoked), 1128 (accidents\-duty to stop), and 1133 (eluding a police officer);
    2. fish and wildlife offenses that are not minor violations as defined by 10 V.S.A. § 4572 ; and
    3. an offense listed in subsection 5204(a) of this title.

      Added 2015, No. 153 (Adj. Sess.), § 17; amended 2019, No. 124 (Adj. Sess.), § 6; 2019, No. 124 (Adj. Sess.), § 7, eff. July 1, 2022.

History

Amendments--2019 (Adj. Sess.). Section heading: Act No. 124, § 7 substituted "to 19-year-olds" for "and 18-year-olds".

Subdiv. (a)(1): Substituted "20" for "19".

Effective date of amendments--2019 (Adj. Sess.). 2019, No. 124 (Adj. Sess.), § 12 provides that the amendments to this section by 2019, No. 124 (Adj. Sess.), § 7 shall take effect on July 1, 2022.

Subchapter 2. Petition, Merits, and Disposition

§ 5221. Citation and notice to appear at preliminary hearing.

  1. Citation.  If an officer has probable cause to believe that a child has committed or is committing a delinquent act and the circumstances do not warrant taking the child into custody pursuant to subchapter 3 of this chapter, the officer may issue a citation to appear before a judicial officer in lieu of arrest.
  2. Appearance in court.  A child who receives a citation described in this section shall appear at the court designated in the citation at the time and date specified in the citation unless otherwise notified by the court.
  3. Notice to parent.  The officer who issues the citation shall also issue or cause to be issued a notice to the child's custodial parent, guardian, or custodian. The notice shall indicate the date, time, and place of the preliminary hearing and shall direct the responsible adult to appear at the hearing with the child.
  4. Form.  The citation to appear shall be dated and signed by the issuing officer and shall direct the child to appear before a judicial officer at a stated time and place. The citation shall state the name of the child to whom it is addressed, the delinquent act that the child is alleged to have committed, and a notice that the child is entitled to be represented by an attorney at the hearing and that an attorney will be appointed for the child if the parent or guardian is indigent and cannot afford an attorney.
  5. Filing of citation.  The issuing officer shall sign the citation and file the citation and an affidavit as to probable cause with the State's Attorney.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5222. Petition; contents.

  1. The petition shall be supported by an affidavit as to probable cause. The petition shall contain the following:
    1. A concise statement of the facts that support the conclusion that the child has committed a delinquent act, together with a statement that it is in the best interests of the child that the proceedings be brought.
    2. The name, date of birth, telephone number, and residence address, if known, of the child and the custodial and noncustodial parents or the guardian or custodian of the child, if other than parent. If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152 , the petition shall so specify.
  2. If a temporary care order has been issued or the State is requesting that custody be transferred to the Commissioner, the petition shall contain jurisdictional information as required by the Uniform Child Custody Jurisdiction and Enforcement Act, 15 V.S.A. chapter 20.
  3. A petition alleging a delinquent act may not be amended to allege that a child is in need of care or supervision, and a child who has been adjudged a delinquent child as a result of a delinquency petition may not be subsequently adjudged a child in need of care or supervision, unless a separate petition alleging that the child is in need of care or supervision is filed.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

History

2014. In subsec. (b), added "and Enforcement" following "Jurisdiction" and substituted "15 V.S.A. chapter 20" for "15 V.S.A. § 1032 et seq." to correct references in the text.

§ 5223. Filing of petition.

  1. When notice to the child is provided by citation, the State's Attorney shall file the petition and supporting affidavit at least 10 business days prior to the date for the preliminary hearing specified in the citation.
  2. The court shall send or deliver a copy of the petition and affidavit to the Commissioner after a finding of probable cause. A copy of the petition and affidavit shall be made available at the State's Attorney's office to all persons required to receive notice, including the noncustodial parent, as soon as possible after the petition is filed and at least five business days prior to the date set for the preliminary hearing.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 25.

History

Amendments--2015 (Adj. Sess.). Subsec. (a): Substituted "10 business days" for "10 days".

Subsec. (b): Amended generally.

§ 5224. Failure to appear at preliminary hearing.

If a child or custodial parent, guardian, or custodian fails to appear at the preliminary hearing as directed by a citation, the court may issue a summons to appear, an order to have the child brought to court, or a warrant as provided in section 5108 of this title. The summons, order, or warrant shall be served by the law enforcement agency that cited or took the child into custody, or another law enforcement agency acting on its behalf.

Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 58 , § E.204.3, eff. June 11, 2015.

History

Amendments--2015. Added the second sentence.

§ 5225. Preliminary hearing; risk assessment.

  1. Preliminary hearing.  A preliminary hearing shall be held at the time and date specified on the citation or as otherwise ordered by the court. If a child is taken into custody prior to the preliminary hearing, the preliminary hearing shall be at the time of the temporary care hearing. Counsel for the child shall be assigned prior to the preliminary hearing.

    Risk and needs screening.

    Prior to the preliminary hearing, the child shall be afforded an opportunity to undergo a risk and needs screening, which shall be conducted by the Department or by a community provider that has contracted with the Department to provide risk and need screenings for children alleged to have committed delinquent acts.

    (2) If the child participates in such a screening, the Department or the community provider shall report the risk level result of the screening, the number and source of the collateral contacts made, and the recommendation for charging or other alternatives to the State's Attorney. The State's Attorney shall consider the results of the risk and needs screening in determining whether to file a charge. In lieu of filing a charge, the State's Attorney may refer a child directly to a youth-appropriate community-based provider that has been approved by the Department, which may include a community justice center or a balanced and restorative justice program. Referral to a community-based provider pursuant to this subsection shall not require the State's Attorney to file a charge. If the community-based provider does not accept the case or if the child fails to complete the program in a manner deemed satisfactory and timely by the provider, the child's case shall return to the State's Attorney for charging consideration.

    If a charge is brought in the Family Division, the risk level result shall be provided to the child's attorney.

    (c) Referral to diversion. Based on the results of the risk and needs screening, if a child presents a low to moderate risk to reoffend, the State's Attorney shall refer the child directly to court diversion unless the State's Attorney states on the record why a referral to court diversion would not serve the ends of justice. If the court diversion program does not accept the case or if the child fails to complete the program in a manner deemed satisfactory and timely by the provider, the child's case shall return to the State's Attorney for charging consideration.

    Guardian ad litem. At the preliminary hearing, the court shall appoint a guardian ad litem for the child. The guardian ad litem may be the child's parent, guardian, or custodian. On its own motion or motion by the child's attorney, the court may appoint a guardian ad litem other than a parent, guardian, or custodian.

    Admission; denial. At the preliminary hearing, a denial shall be entered to the allegations of the petition, unless the juvenile, after adequate consultation with the guardian ad litem and counsel, enters an admission. If the juvenile enters an admission, the disposition case plan required by section 5230 of this title may be waived and the court may proceed directly to disposition, provided that the juvenile, the custodial parent, the State's Attorney, the guardian ad litem, and the Department agree.

    Conditions. The court may order the child to abide by conditions of release pending a merits or disposition hearing.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 159 (Adj. Sess.), § 6; 2015, No. 153 (Adj. Sess.), § 14; 2017, No. 201 (Adj. Sess.), § 6.

History

Amendments--2017 (Adj. Sess.). Section amended generally.

Amendments--2015 (Adj. Sess.). Subsec. (b): Added the third, fourth, and fifth sentences.

Amendments--2011 (Adj. Sess.). Section amended generally.

§ 5226. Repealed. 2015, No. 153 (Adj. Sess.), § 36.

History

Former § 5226. Former § 5226, relating to notification of conditions of release, was derived from 2007, No. 185 (Adj. Sess.), § 2.

§ 5227. Timelines for pretrial and merits hearing.

  1. Pre-trial hearing.  At the preliminary hearing, the court shall set a date for a pretrial hearing on the petition. The pretrial hearing shall be held within 15 days of the preliminary hearing. In the event there is no admission or dismissal at the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.
  2. Merits hearing.  Except for good cause shown, a merits hearing shall be held and merits adjudicated no later than 60 days from the date of the preliminary hearing.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5228. Constitutional protections for a child in delinquency proceedings.

A child charged with a delinquent act need not be a witness against, nor otherwise incriminate, himself or herself. Any extrajudicial statement, if constitutionally inadmissible in a criminal proceeding, shall not be used against the child. Evidence illegally seized or obtained shall not be used over objection to establish the charge against the child. A confession out of court is insufficient to support an adjudication of delinquency unless corroborated in whole or in part by other substantial evidence.

Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5229. Merits adjudication.

  1. The parties at a merits hearing in a delinquency proceeding shall be limited to the State's Attorney and the child who is the subject of the petition. A merits adjudication hearing shall not proceed forward unless the child who is the subject of the delinquency petition is present in court.
  2. The State shall have the burden of establishing beyond a reasonable doubt that the child has committed a delinquent act.
  3. If the child who is the subject of the delinquency petition enters an admission to the petition, the court shall not accept the admission without first addressing the child personally in open court and determining that:
    1. the plea is voluntary;
    2. the child understands the nature of the delinquent act charged, the right to contest the charge, and the rights that will be waived if the admission is accepted by the court; and
    3. there is a factual basis for the delinquent act charged in the petition.
  4. A merits hearing shall be conducted in accordance with the Vermont Rules of Evidence.
  5. If the merits are contested, the court, after hearing the evidence, shall make its findings on the record.
  6. If the court finds that the allegations made in the petition have not been established beyond a reasonable doubt, the court shall dismiss the petition and vacate any orders transferring custody to the State or other person or any conditional custody orders.
  7. If, based on the child's admission or the evidence presented, the court finds beyond a reasonable doubt that the child has committed a delinquent act, the court shall order the Department to prepare a disposition case plan not later than seven business days before the disposition hearing. In no event shall a disposition hearing be held later than 35 days after a finding that a child is delinquent.
  8. The court may proceed directly to disposition providing that the child, the custodial parent, the State's Attorney, and the Department agree.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 26.

History

Amendments--2015 (Adj. Sess.). Subsec. (g): Substituted "not later than seven business days before the" for "within 28 days of the merits adjudication and shall set the matter for a".

§ 5230. Disposition case plan.

  1. Filing of case plan.  Following the finding by the court that a child is delinquent, the Department shall file a disposition case plan not later than seven business days before the scheduled disposition hearing. The disposition case plan shall not be used or referred to as evidence prior to a finding that a child is delinquent.
  2. Content of case plan.  A disposition case plan shall include, as appropriate:
    1. An assessment of the child's medical, psychological, social, educational, and vocational needs.
    2. An assessment of the impact of the delinquent act on the victim and the community, including, whenever possible, a statement from the victim.
    3. A description of the child's home, school, community, and current living situation.
    4. An assessment of the child's and family's strengths and risk factors.
    5. Proposed conditions of probation that address the identified risks and provide for, to the extent possible, repair of the harm to victims and the community. Proposed conditions may include a recommendation as to the term of probation.
    6. The plan of services shall describe the responsibilities of the child; the parent, guardian, or custodian; the Department; other family members; and treatment providers, including a description of the services required to achieve successful completion of the goals of probation and, if the child has been placed in the custody of the Department, the permanency goal.
  3. Case plan for child in custody.  If a child is in the custody of the Commissioner at the time of disposition or if a transfer of custody is requested, the case plan shall include the following additional information:
    1. A permanency goal if the child is in custody. The long-term goal for a child found to be delinquent and placed in the custody of the Department is a safe and permanent home. A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal. The plan shall specify whether permanency will be achieved through reunification with a parent, custodian, or guardian; adoption; permanent guardianship; or other permanent placement. In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.
    2. A recommendation with respect to custody for the child and a recommendation for parent-child contact if appropriate.
    3. A request for child support if the child has been placed in the custody of the Department or the Department recommends a transfer of custody.

      Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 27.

History

Amendments--2015 (Adj. Sess.). Subsec. (a): Rewrote the first sentence.

§ 5231. Disposition hearing.

  1. Timeline.  A disposition hearing shall be held no later than 35 days after a finding that a child is delinquent.
  2. Hearing procedure.  If disposition is contested, all parties shall have the right to present evidence and examine witnesses. Hearsay may be admitted and may be relied on to the extent of its probative value. If reports are admitted, the parties shall be afforded an opportunity to examine those persons making the reports, but sources of confidential information need not be disclosed.
  3. Standard of proof.  If the court terminates the parental rights of one or both parents, the standard of proof on the issue of such termination shall be clear and convincing evidence. On all other issues, the standard of proof shall be a preponderance of the evidence.
  4. Termination of parental rights.  If the Commissioner or the attorney for the child seeks an order terminating parental rights of one or both parents and transfer of custody to the Commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.
  5. Further hearing.  On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case. The court shall make an appropriate order for the temporary care of the child pending a final disposition order. The court shall give scheduling priority to cases in which the child has been removed from the home.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5232. Disposition order.

  1. If a child is found to be a delinquent child, the court shall make such orders at disposition as may provide for:
    1. the child's supervision, care, and rehabilitation;
    2. the protection of the community;
    3. accountability to victims and the community for offenses committed; and
    4. the development of competencies to enable the child to become a responsible and productive member of the community.
  2. In carrying out the purposes outlined in subsection (a) of this section, the court may:
    1. Place the child on probation subject to the supervision of the Commissioner, upon such conditions as the court may prescribe. The length of probation shall be as prescribed by the court or until further order of the court.
    2. Order custody of the child be given to the custodial parent, guardian, or custodian. For a fixed period of time following disposition, the court may order that custody be subject to such conditions and limitations as the court may deem necessary and sufficient to provide for the safety of the child and the community. Conditions may include protective supervision for up to six months following the disposition order unless further extended by court order. The court shall hold review hearings pursuant to section 5320 of this title to determine whether the conditions continue to be necessary.
    3. Transfer custody of the child to a noncustodial parent, relative, or person with a significant connection to the child. The court may order that custody be subject to such conditions and limitations as the court may deem necessary and sufficient to provide for the safety of the child and community, including protective supervision, for up to six months unless further extended by court order. The court shall hold review hearings pursuant to section 5320 of this title to determine whether the conditions continue to be necessary.
    4. Transfer custody of the child to the Commissioner.
    5. Terminate parental rights and transfer custody and guardianship to the Department without limitation as to adoption.
    6. Issue an order of permanent guardianship pursuant to 14 V.S.A. § 2664 .
    7. Refer a child directly to a youth-appropriate community-based provider that has been approved by the Department, which may include a community justice center or a balanced and restorative justice program. Referral to a community-based provider pursuant to this subdivision shall not require the court to place the child on probation. If the community-based provider does not accept the case or if the child fails to complete the program in a manner deemed satisfactory and timely by the provider, the child shall return to the court for disposition.
  3. If the court orders the transfer of custody of the child pursuant to subdivisions (b)(4) and (5) of this section, the court shall establish a permanency goal for the child and adopt a case plan prepared by the Department designed to achieve the permanency goal. If the court determines that the plan proposed by the Department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the Department and order the Department to prepare and submit a revised plan for court approval.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 28 , § 3, eff. May 21, 2009; 2011, No. 159 (Adj. Sess.), § 5; 2015, No. 170 (Adj. Sess.), § 8, eff. Sept. 1, 2016.

History

Amendments--2015 (Adj. Sess.). Subdiv. (b)(2): Substituted "six months" for "one year" in the third sentence, and "shall hold review hearings pursuant to section 5320 of this title" for "shall schedule regular review hearings" in the fourth sentence.

Subdiv. (b)(3): Added the second and third sentences.

Amendments--2011 (Adj. Sess.). Subdiv. (b)(7): Added.

Amendments--2009. Subdiv. (b)(6): Added.

ANNOTATIONS

1. Evidence.

There was no merit to a mother's argument that evidence was improperly excluded from a delinquency disposition proceeding, as the mother failed to identify hearsay reports that should have been admitted or indicate what they would have shown, and she failed to show how admission of the child's school records would have changed the result. The court's findings were amply supported by the testimony of school personnel and a State detective, and the disposition was based in large part on the improvements the child had made. In re B.A., 197 Vt. 169, 101 A.3d 168 (2014).

§ 5233. Repealed. 2015, No. 153 (Adj. Sess.), § 36.

History

Former § 5233. Former § 5233, relating to victim's statement, was derived from 2007, No. 185 (Adj. Sess.), § 2.

§ 5234. Rights of victims in delinquency proceedings involving a listed crime.

  1. The victim in a delinquency proceeding involving a listed crime shall have the following rights:
    1. To be notified by the prosecutor's office in a timely manner of the following:
      1. when a delinquency petition has been filed, the name of the child and any conditions of release initially ordered for the child or modified by the court that are related to the victim or a member of the victim's family or current household;
      2. his or her rights as provided by law, information regarding how a case proceeds through a delinquency proceeding, the confidential nature of delinquency proceedings, and that it is unlawful to disclose confidential information concerning the proceedings to another person;
      3. when a predispositional or dispositional court proceeding is scheduled to take place and when a court proceeding of which he or she has been notified will not take place as scheduled; and
      4. whether delinquency has been found and disposition has occurred, and any conditions of release or conditions of probation that are related to the victim or a member of the victim's family or current household and any restitution, when ordered.
    2. To file with the court a written or recorded statement of the impact of the delinquent act on the victim and the need for restitution.
    3. To attend the disposition hearing and to present a victim impact statement, including testimony in support of his or her claim for restitution pursuant to section 5235 of this title, and to be notified as to the disposition, including probation. The court shall consider the victim's statement when ordering disposition. The victim shall not be personally present at any portion of the disposition hearing except to present a victim impact statement or to testify in support of his or her claim for restitution unless the court finds that the victim's presence is necessary in the interest of justice.
    4. Upon request, to be notified by the agency having custody of the delinquent child before he or she is discharged from a secure or staff-secured residential facility. The name of the facility shall not be disclosed. An agency's inability to give notification shall not preclude the release. However, in such an event, the agency shall take reasonable steps to give notification of the release as soon thereafter as practicable. Notification efforts shall be deemed reasonable if the agency attempts to contact the victim at the address or telephone number provided to the agency in the request for notification.
    5. To have the court take his or her views into consideration in the court's disposition order. If the victim is not present, the court shall consider whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into account when ordering disposition.
    6. [Repealed.]
  2. The prosecutor's office shall keep the victim informed and consult with the victim through the delinquency proceedings.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 21.

History

Amendments--2015 (Adj. Sess.). Section amended generally.

§ 5234a. Rights of victims in delinquency proceedings involving a nonlisted crime.

  1. The victim in a delinquency proceeding involving an offense that is not a listed crime shall have the following rights:
    1. To be notified by the prosecutor's office in a timely manner of the following:
      1. his or her rights as provided by law, information regarding how a delinquency proceeding is adjudicated, the confidential nature of juvenile proceedings, and that it is unlawful to disclose confidential information concerning the proceedings;
      2. when a delinquency petition is filed;
      3. the child's name and the conditions of release ordered for the child or modified by the court if the conditions relate to the victim or a member of the victim's family or current household; and
      4. when a dispositional court proceeding is scheduled to take place and when a court proceeding of which he or she has been notified will not take place as scheduled.
    2. That delinquency has been found and disposition has occurred, and any conditions of release or conditions of probation that are related to the victim or a member of the victim's family or current household and any restitution ordered.
    3. To file with the court a written or recorded statement of the impact of the delinquent act on the victim and any need for restitution.
    4. To attend the disposition hearing for the sole purpose of presenting to the court a victim impact statement, including testimony in support of his or her claim for restitution pursuant to section 5235 of this title. The victim shall not be personally present at any portion of the disposition hearing except to present a victim impact statement or to testify in support of his or her claim for restitution unless the court finds that the victim's presence is necessary in the interest of justice.
    5. To have the court take his or her views into consideration in the court's disposition order. If the victim is not present, the court shall consider whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into account when ordering disposition. The court shall order that the victim be notified as to the identity of the child upon disposition if the court finds that release of the child's identity to the victim is in the best interests of both the child and the victim and serves the interests of justice.
  2. The prosecutor's office shall keep the victim informed and consult with the victim through the delinquency proceedings.

    Added 2015, No. 153 (Adj. Sess.), § 22.

§ 5235. Juvenile restitution.

  1. Restitution shall be considered in every case in which a victim of a delinquent act has suffered a material loss. For purposes of this section, "material loss" means uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.
  2. When ordered, restitution may include:
    1. return of property wrongfully taken from the victim;
    2. cash, credit card, or installment payments paid to the Restitution Unit; and
    3. payments in kind, if acceptable to the victim.
  3. In awarding restitution, the court shall make findings in accordance with subdivision 5262(b)(2) of this title.
  4. If restitution is ordered, the victim shall be entitled to payment from the Crime Victims' Restitution Fund, pursuant to 13 V.S.A. § 5363 . An order of restitution shall establish the amount of material loss incurred by the victim, which shall be the restitution judgment order. Every order of restitution shall include:
    1. the juvenile's name and address;
    2. the name of the victim;
    3. the amount ordered; and
    4. any co-defendant names if applicable.
  5. In the event the juvenile is unable to pay the restitution judgment order at the time of disposition, the court shall fix the amount thereof, which shall not exceed an amount the juvenile can or will be able to pay, and shall fix the manner of performance or refer to a restorative justice program that will address how loss resulting from the delinquency will be addressed, subject to modification under section 5264 of this title.
  6. The court shall transmit a copy of a restitution order to the Restitution Unit, which shall make payment to the victim in accordance with 13 V.S.A. § 5363 .
  7. To the extent that the Victims' Compensation Board has made payment to or on behalf of the victim in accordance with 13 V.S.A. chapter 167, restitution, if imposed, shall be paid to the Restitution Unit, which shall make payment to the Crime Victims' Compensation Fund.
  8. When restitution is requested but not ordered, the court shall set forth on the record its reasons for not ordering restitution.
  9. Any information concerning restitution payments made by a juvenile shall be available to the Vermont Restitution Unit for purposes of determining restitution obligations of adult and juvenile co-defendants.
  10. In accordance with 13 V.S.A. § 5363 , the Restitution Unit is authorized to make payments to victims of delinquent acts where restitution was ordered by a court prior to July 1, 2008, and the order was first entered on or after July 1, 2004.
    1. The Restitution Unit may bring an action to enforce a restitution order issued under this section in the Superior or Small Claims Court of the county where the offender resides or in the county where the order was issued. In an action under this subsection, a restitution order issued in a juvenile proceeding shall be enforceable in Superior or Small Claims Court in the same manner as a civil judgment. Superior and Small Claims Court filing fees shall be waived for an action under this subsection and for an action to renew a restitution judgment. (k) (1)  The Restitution Unit may bring an action to enforce a restitution order issued under this section in the Superior or Small Claims Court of the county where the offender resides or in the county where the order was issued. In an action under this subsection, a restitution order issued in a juvenile proceeding shall be enforceable in Superior or Small Claims Court in the same manner as a civil judgment. Superior and Small Claims Court filing fees shall be waived for an action under this subsection and for an action to renew a restitution judgment.
    2. An action under this subsection may be brought only after the offender reaches 18 years of age and shall not be subject to any limitations period.
    3. For purposes of this subsection, a restitution order issued in a juvenile proceeding shall not be confidential.

      Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

Subchapter 3. Children in Custody

§ 5251. Taking into custody.

A child may be taken into custody by an officer:

  1. pursuant to the laws of arrest of this State;
  2. pursuant to an order of the court under the provisions of this chapter and chapters 51 and 53 of this title; or
  3. when the officer has reasonable grounds to believe that the child has committed a delinquent act, and that the child's immediate welfare or the protection of the community, or both, require the child's removal from the child's current home.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5252. Request for emergency care order.

  1. If an officer takes a child who is alleged to be delinquent into custody, the officer shall immediately notify the child's custodial parent, guardian, or custodian and release the child to the care of child's custodial parent, guardian, or custodian unless the officer determines that the child's immediate welfare or the protection of the community, or both, require the child's continued removal from the home.
  2. If the officer determines that the child's immediate welfare, the protection of the community, or both, require the child's continued removal from the home, the officer shall:
    1. Take the child into custody pending either issuance of an emergency care order or direction from the State's Attorney to release the child.
    2. Prepare an affidavit in support of a request for an emergency care order. The affidavit shall include the reasons for taking the child into custody and, if known, placements with which the child is familiar; the names, addresses, and telephone numbers of the child's parents, guardians, or custodians; and the name, address, and telephone number of any relative who has indicated an interest in taking temporary custody of the child. The officer shall contact the Department, and, if the Department has knowledge of the reasons for the removal of the child, the Department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer.
    3. Provide the affidavit to the State's Attorney.
  3. If the child is taken into custody during regular court hours, the State's Attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child's custodial parent, guardian, or custodian. If the child is taken into custody after regular court hours or on a weekend or holiday, the State's Attorney or officer shall contact a judge to request an emergency care order or return the child to the child's custodial parent, guardian, or custodian. If an order is granted, the State's Attorney shall file the supporting affidavit with the Family Division of the Superior Court on the next day that the court is open.
  4. If the judge denies a request for an emergency care order, the State's Attorney shall direct the immediate return of the child to the child's custodial parent, guardian, or custodian.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Substituted "family division of the superior court" for "family court" in subsec. (c).

§ 5253. Emergency care order; conditional custody order.

    1. Transfer of temporary custody.  The court may issue an emergency care order transferring temporary custody of the child to the Department pending a temporary care hearing if the court determines that: (a) (1)  Transfer of temporary custody.  The court may issue an emergency care order transferring temporary custody of the child to the Department pending a temporary care hearing if the court determines that:
      1. there is probable cause that the child has committed a delinquent act; and
      2. continued residence in the home is contrary to the child's welfare because:
        1. the child cannot be controlled at home and is at risk of harm to self or others; or
        2. continued residence in the home will not safeguard the well-being of the child and the safety of the community because of the serious and dangerous nature of the act the juvenile is alleged to have committed.
    2. The determination may be made ex parte, provided that it is reasonably supported by the affidavit prepared in accordance with subsection 5252(b) of this title.
  1. Contents of emergency care order.  The emergency care order shall contain:
    1. a written finding that the child's continued residence in the home is contrary to the child's welfare and the factual allegations that support that finding;
    2. the date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title;
    3. notice of a parent's right to counsel at the temporary care hearing.
  2. Conditional custody order.  If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian, the court may deny the request for an emergency care order and issue an emergency conditional custody order. The order shall contain:
    1. conditions and limitations necessary to protect the child, the community, or both;
    2. the date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title;
    3. notice of a parent's right to counsel at the hearing.

      Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

History

2014. In subdiv. (a)(2), substituted "5252(b)" for "5152(b)" to correct an error in the reference.

§ 5254. Notice of emergency care order and temporary care hearing.

  1. Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the custodial parent, guardian, or custodian of the child. If delivery cannot be made in a timely manner, the officer shall otherwise notify or cause to be notified the custodial parent, guardian, or custodian of the order; the date, time, and place of the temporary care hearing; and the right to counsel. If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate the custodial parent, guardian, or custodian.
  2. Notice to noncustodial parent.  The Department shall make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with the emergency care or conditional custody order; notice of the date, hour, and place of the temporary care hearing; and of the right to counsel. If the noncustodial parent cannot be located, the Department shall provide to the court a summary of the efforts made to locate the noncustodial parent.
  3. Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:
    1. The State's Attorney.
    2. The Department.
    3. An attorney to represent the child.
    4. A guardian ad litem for the child.
    5. An attorney to represent each parent. The attorney may be Court-appointed in the event a parent is eligible, or may be an attorney who has entered an appearance on behalf of a parent.

      Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5255. Temporary care hearing.

  1. A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5253 of this title. State holidays shall be excluded from the computation of 72 hours. If the custodial parent, guardian, or custodian has not been notified in accordance with section 5254 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.
  2. If the State's Attorney is seeking a temporary care order, the State's Attorney shall file a petition on or before the temporary care hearing. If the State's Attorney elects not to file a petition, the State's Attorney shall so notify the court, and the court shall vacate any temporary orders.
  3. The following persons shall be present at the temporary care hearing:
    1. the child;
    2. the child's custodial parent, guardian, or custodian, unless he or she cannot be located or fails to appear in response to notice;
    3. the child's guardian ad litem;
    4. an attorney for the child;
    5. an attorney for the custodial parent, if requested;
    6. a representative of the Department; and
    7. the State's Attorney.
  4. A noncustodial parent and his or her attorney shall have the right to be present at the hearing. The hearing shall not be delayed by reason of the inability of the Department to locate the noncustodial parent.
  5. The Department shall provide the following information to the court at the hearing:
    1. Any reasons for the child's removal that are not set forth in the affidavit required pursuant to section 5252 of this title.
    2. Services, if any, provided to the child and the family in an effort to prevent removal.
    3. The need, if any, for continued custody of the child with the Department pending a hearing to adjudicate the merits of the petition.
    4. Services that could facilitate the return of the child to the custody of the parent or guardian.
      1. The identity of a noncustodial parent and any relatives known to the Department who may be suitable, willing, and available to assume temporary custody of the child. (5) (A) The identity of a noncustodial parent and any relatives known to the Department who may be suitable, willing, and available to assume temporary custody of the child.
      2. With respect to any person whom the Department identifies pursuant to this subdivision, the Department shall conduct an assessment of the suitability of the person to care for the child. The assessment shall include consideration of the person's ability to care for the child's needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection (e), and a check of allegations of prior child abuse or neglect by the person or by other adults in the person's home. The court may continue the hearing if necessary to permit the Department to complete the assessment.
      3. The Department shall request from the Vermont Crime Information Center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision. The request shall be in writing and shall be accompanied by a release signed by the person. The Department through the Vermont Crime Information Center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed. If no disqualifying record is identified at the state level, the Department through the Vermont Crime Information Center shall request from the Federal Bureau of Investigation (FBI) a National Criminal History Record Check of the person's criminal history. The request to the FBI shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont Crime Information Center. The Vermont Crime Information Center shall send the Department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the Department that no record exists. The Department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont Crime Information Center. Upon completion of the process under this subdivision, the person's fingerprint card shall be destroyed.
    5. Additional information as required by the Uniform Child Custody Jurisdiction and Enforcement Act pursuant to 15 V.S.A. chapter 20 and the Indian Child Welfare Act pursuant to 25 U.S.C. § 1901 et seq.
  6. All parties shall have the right to present evidence on their own behalf and examine witnesses. Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible. The court may in its discretion limit testimony and evidence to only that which goes to the issues of removal, custody, and the child's welfare.
  7. The temporary care hearing shall also be a preliminary hearing on the petition.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2013, No. 119 (Adj. Sess.), § 18.

History

Reference in text. The Federal Bureau of Investigation, referred to in subdiv. (e)(5)(B), is codified as 28 U.S.C. § 531.

2014. In subdiv. (e)(5)(C), added "(FBI)" after "Federal Bureau of Investigation", and in subdiv. (e)(6) added "and Enforcement" before "Act", and substituted "chapter 20" for " § 1037" to correct references in the text.

Amendments--2013 (Adj. Sess.). Subdiv. (e)(5)(C): Substituted "Crime Information Center" for "Criminal Information Center" throughout the subdivision.

§ 5256. Temporary care order.

  1. The court shall order that custody be returned to the child's custodial parent, guardian, or custodian unless the court finds by a preponderance of the evidence that return to the home would be contrary to the welfare of the child because of any of the following:
    1. The child cannot be controlled at home and is at risk of harm to self or others.
    2. Continued residence in the home will not protect the community because of the serious and dangerous nature of the act the child is alleged to have committed.
    3. The child's welfare is otherwise endangered.
  2. Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child, and the safety of the community, including:
    1. a conditional custody order returning custody of the child to the custodial parent, guardian, or custodian, subject to such conditions and limitation as the court may deem necessary and sufficient to protect the child and the community;
    2. an order transferring temporary custody of the child to a noncustodial parent or a relative;
    3. a temporary care order transferring temporary custody of the child to the Commissioner.
    1. If the court transfers custody of the child to the Commissioner, the court shall issue a written temporary care order. The order shall include: (c) (1)  If the court transfers custody of the child to the Commissioner, the court shall issue a written temporary care order. The order shall include:
      1. a finding that remaining in the home is contrary to the child's welfare and the facts upon which that finding is based; and
      2. a finding as to whether reasonable efforts were made to prevent the unnecessary removal of the child from the home.
    2. If at the conclusion of the hearing the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.
    3. The order may include such other provisions as may be necessary for the protection and welfare of the child:
      1. conditions of release;
      2. an order for parent-child contact under such terms and conditions as are necessary for the protection of the child;
      3. an order that the Department provide the child with services if legal custody of the child has been transferred to the Commissioner;
      4. an order that the Department refer a parent to services;
      5. a genetic testing order if parentage of the child is at issue;
      6. an order that the Department make diligent efforts to locate the noncustodial parent;
      7. an order that the custodial parent provide the Department with names of all potential noncustodial parents and relatives of the child;
      8. an order establishing protective supervision and requiring the Department to make appropriate service referrals for the child and the family if legal custody is transferred to an individual other than the Commissioner.
    4. In his or her discretion, the Commissioner may provide assistance and services to children and families to the extent that funds permit, notwithstanding subdivision (3)(C) of this subsection.

      Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5257. Filing of initial case plan.

  1. If a temporary care order is issued granting custody to the Commissioner, the Department shall prepare and file with the court an initial case plan for the child and the family within 60 days of the child's removal from the home. The Department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.
  2. The initial case plan shall not be used or referred to as evidence prior to a finding that the child has committed a delinquent act.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5258. Postdisposition review and permanency review for delinquents in custody.

Whenever custody of a delinquent child is transferred to the Commissioner or the court orders conditional custody of a child, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to section 5321 of this title. At the permanency review, the court shall review the permanency plan and determine whether the plan advances the permanency goal recommended by the Department. The court may accept or reject the plan, but may not designate a particular placement for a child in the Department's legal custody. Any conditional custody order shall be subject to review pursuant to section 5258a of this title.

Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2015, No. 170 (Adj. Sess.), § 9, eff. Sept. 1, 2016.

History

Amendments--2015 (Adj. Sess.). Inserted "or the Court orders conditional custody of a child" following "Commissioner" in the first sentence, and added the fourth sentence.

§ 5258a. Duration of conditional custody orders postdisposition.

  1. Conditional custody orders to parents.  Whenever the court issues a conditional custody order transferring custody to a parent either at or following disposition, the presumptive duration of the order shall be no more than six months from the date of the disposition order or the conditional custody order, whichever occurs later, unless otherwise extended by the court after hearing. At least 14 days prior to the termination of the order, any party may file a request to extend the order pursuant to subsection 5113(b) of this title. Upon such motion, the court may extend the order for an additional period of time not to exceed six months. Prior to vacating the conditional custody order, the court may schedule a hearing on its own motion to review the case prior to discharging the conditions. If a motion to extend is not filed, the court shall issue an order vacating the conditions and transferring full custody to the parent without conditions.
  2. Custody orders to nonparents.
    1. When the court at disposition issues an order continuing or transferring legal custody with a nonparent pursuant to subdivision 5232(b)(3) of this title, the court shall set the matter for a hearing six months from the date of disposition or custody order, whichever occurs later. At the hearing, the court shall determine whether it is in the best interests of the child to:
      1. transfer either full or conditional custody of the child to a parent;
      2. establish a permanent guardianship pursuant to 14 V.S.A. § 2664 with the nonparent who has had custody of the child as the guardian; or
      3. terminate residual parental rights and release the child for adoption.
    2. If, after hearing, the court determines that reasonable progress has been made toward reunification and that reunification is in the best interests of the child but will require additional time, the court may extend the current order for a period not to exceed six months and set the matter for further hearing.

      Added 2015, No. 170 (Adj. Sess.), § 10, eff. Sept. 1, 2016.

Subchapter 4. Probation

§ 5261. Powers and responsibilities of the Commissioner regarding juvenile probation.

The Commissioner shall be charged with the following powers and responsibilities regarding the administration of juvenile probation:

  1. to maintain supervision of juveniles placed on probation;
  2. to supervise the administration of juvenile probation services, including the authority to enter into contracts with community-based agencies to provide probation services, which may include restitution and community service programs, and to establish policies and standards and adopt rules regarding juvenile probation investigation, supervision, casework and caseloads, record-keeping, and the qualification of juvenile probation officers; and
  3. to prescribe rules, consistent with any orders of the court, governing the conduct of juveniles on probation.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5262. Conditions of probation.

  1. The conditions of probation shall be such as the court in its discretion deems necessary to ensure to the greatest extent reasonably possible that the juvenile will be provided a program of treatment, training, and rehabilitation consistent with the protection of the public interest. The court shall provide as an explicit condition of every juvenile probation certificate that if the juvenile is adjudicated a delinquent or is convicted of an adult crime while on probation, then the court may find the juvenile in violation of the conditions of probation.
  2. The court may, as a condition of probation, require that the juvenile:
    1. Work faithfully for a prescribed number of hours at a community service activity acceptable to the court or, if so ordered by the court, at a community service activity acceptable to a probation officer.
    2. Make restitution or reparation to the victim of the juvenile's conduct for the damage or injury that was sustained. When restitution or reparation is a condition of probation, the court shall fix the amount thereof. The court shall further determine the amount the juvenile can or will be able to pay and fix the manner of performance. In the alternative, the court may refer the determination of the amount, the ability to pay, and the manner of performance to a restorative justice panel.
    3. Participate in programs designed to develop competencies to enable the child to become a responsible and productive member of the community.
    4. Refrain from purchasing or possessing a firearm or ammunition, any destructive device, or any dangerous weapon unless granted written permission by the court or juvenile probation officer.
    5. Report to a juvenile probation officer at reasonable times as directed by the court or the probation officer.
    6. Permit the juvenile probation officer to visit the juvenile at reasonable times at home or elsewhere.
    7. Remain within the jurisdiction of the court unless granted permission to leave by the court or the probation officer.
    8. Answer all reasonable inquiries by the juvenile probation officer and promptly notify the probation officer of any change in address or employment.
    9. Satisfy any other conditions reasonably related to the juvenile's rehabilitation.
    10. Reside at home or other location specified by the court.
    11. Attend or reside at an educational or vocational facility or a facility established for the instruction, recreation, or residence of persons on probation.
    12. Work faithfully at suitable employment or faithfully pursue a course of study or of vocational training that will equip the juvenile for suitable employment.
    13. Undergo available medical treatment, participate in psychiatric treatment or mental health counseling, and participate in alcohol or drug abuse assessment or treatment on an outpatient or inpatient basis.

      Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5263. Juvenile probation certificate.

  1. When a juvenile is placed on probation, the court shall issue a written juvenile probation certificate setting forth:
    1. the name of the juvenile;
    2. the nature of the delinquent act committed by the juvenile;
    3. the date and place of the juvenile delinquency hearing;
    4. the order of the court placing the juvenile on probation; and
    5. the conditions of the juvenile's probation.
  2. The juvenile probation certificate shall be furnished to and signed by the juvenile and a custodial parent, guardian, or custodian of the child, if other than parent. It shall be fully explained to them, and they shall be informed about the consequences of violating the conditions of probation, including the possibility of revocation of probation. A copy of the juvenile probation certificate shall also be furnished to the Commissioner. The probation certificate is not invalidated if it is not signed as required by this subsection.
  3. The signature of a custodial parent, guardian, or custodian on a probation certificate shall constitute verification that the parent, guardian, or custodian understands the terms of juvenile probation and agrees to facilitate and support the child's compliance with such terms and to attend treatment programs with the child as recommended by the treatment provider.
  4. The juvenile probation certificate shall be full authority for the exercise by the Commissioner of all the rights and powers over and in relation to the juvenile prescribed by law and by the order of the court.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5264. Modification of conditions.

  1. During the period of probation, the court, on application of a juvenile probation officer, the State's Attorney, the juvenile, or on its own motion, may modify the requirements imposed upon the juvenile or add further requirements authorized by section 5262 of this title. A juvenile may request modification of a restitution issue determined by a restorative panel.
  2. Whenever the court proposes any modification of the conditions of probation, the juvenile probationer shall have a reasonable opportunity to contest the modification prior to its imposition.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5265. Violation of conditions of probation.

  1. If the juvenile fails to comply with conditions of probation, the State's Attorney, a juvenile probation officer, or the court on its own motion may initiate a proceeding to establish that the juvenile is in violation of probation conditions.
  2. A juvenile probationer shall not be found in violation of conditions of probation unless the juvenile probationer is found to have violated a condition of probation, is again adjudicated a delinquent, or is convicted of a crime.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5266. Summons, apprehension, and prehearing placement of juvenile probationer.

At any time before the discharge of a juvenile probationer or the termination of the period of probation:

  1. The court may summon the juvenile to appear before it or may issue an order for the juvenile's apprehension and placement in a detention or treatment facility.
  2. Any juvenile probation officer may apprehend a juvenile probationer or may authorize any officer to do so by giving the officer a written statement setting forth that the juvenile has, in the judgment of the juvenile probation officer, violated a condition of probation. The written statement delivered with the juvenile by the apprehending officer to the supervisor of the juvenile detention or treatment facility or residential program to which the juvenile is brought for prehearing placement shall be sufficient authority for maintaining the juvenile in the facility or residential program.
  3. Any juvenile probationer apprehended or placed in accordance with the provisions of this chapter shall have no right of action against the juvenile probation officer or any other person because of such apprehension or placement.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 3 , § 94, eff. Feb. 17, 2011.

History

Amendments--2011. Section heading: Substituted "prehearing placement" for "detention".

Subdiv. (1): Substituted "apprehension and placement in a detention or treatment facility" for "detention" following "juvenile's".

Subdiv. (2): Substituted "apprehend" and "apprehending" for "detain" and "detaining" in the first and second sentences respectively; inserted "detention or treatment" preceding "facility" the first time it appears; substituted "prehearing placement" for "detention" and "maintaining" for "detaining" and inserted "in the facility or residential program" following "juvenile" in the second sentence.

Subdiv. (3): Substituted "placed" for "detained" and "placement" for "detention".

§ 5267. Previolation hearing.

  1. Whenever a juvenile probationer is apprehended and placed on the grounds that the juvenile has violated a condition of probation, the juvenile shall be given a hearing before a judicial officer prior to the close of business on the next court business day in order to determine whether there is probable cause to hold the juvenile for a violation hearing. The juvenile and the adult who signed the probation certificate shall be given:
    1. notice of the previolation hearing and its purpose and the allegations of violations of conditions of probation; and
    2. notice of the juvenile's right to be represented by counsel and right to be assigned counsel if the juvenile is unable to obtain counsel.
  2. At the previolation hearing the juvenile shall be given:
    1. an opportunity to appear at the hearing and present evidence on his or her own behalf; and
    2. upon request, the opportunity to question witnesses against him or her unless, for good cause, the judicial officer decides that justice does not require the appearance of the witness.
  3. If probable cause is found to exist, the juvenile shall be held for a hearing to determine if the juvenile violated the conditions of probation. If probable cause is not found to exist, the proceedings shall be dismissed.
  4. A juvenile held under this section pursuant to a request to find the juvenile in violation of probation may be released by a judicial officer pending hearing or appeal.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 3 , § 95, eff. Feb. 17, 2011.

History

Amendments--2011. Section heading: Substituted "Previolation" for "Detention".

Subsec. (a): Substituted "apprehended and placed" for "detained" in the first sentence.

Subdiv. (a)(1): Substituted "previolation" for "detention" preceding "hearing".

Subsec. (b): Substituted "previolation" for "detention" preceding "hearing".

Subsec. (d): Substituted "under this section" for "in detention" preceding "pursuant".

§ 5268. Notice; violation hearing.

  1. The court shall not find a juvenile in violation of the juvenile's probation without a hearing, which shall be held promptly in the court in which the probation was imposed. If the juvenile is held in detention prior to the hearing, the hearing shall take place at the earliest possible time. Prior to the hearing, the juvenile and the adult who signed the probation certificate shall receive a written notice of the hearing at his or her last known address stating that the juvenile has allegedly violated one or more conditions of probation and which condition or conditions have been violated. At the hearing, the juvenile shall have:
    1. the right to legal counsel if requested by the juvenile probationer or the adult who signed the probation certificate to be assigned by the court in the same manner as in criminal cases;
    2. the right to disclosure of evidence against the juvenile;
    3. the opportunity to appear and to present evidence on the juvenile's behalf;
    4. the opportunity to question witnesses against the juvenile.
  2. The State's Attorney having jurisdiction or the Commissioner shall establish the alleged violation by a preponderance of the evidence if the juvenile probationer contests the allegation.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5269. Disposition alternatives upon violation of conditions of probation.

If a violation of conditions of probation is established, the court may, in its discretion, modify the conditions of probation or order any of the disposition alternatives provided for in section 5232 of this title.

Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5270. Final judgment.

An order placing a juvenile on probation and a finding that a juvenile violated a condition of probation shall constitute a final judgment.

Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5271. Discharge from probation.

  1. The court placing a juvenile on probation may terminate probation and discharge the juvenile at any time.
  2. Upon the termination of the period of probation, the juvenile probationer shall be discharged from probation.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5272. Juvenile Justice Unit; Juvenile Justice Director.

  1. A Juvenile Justice Unit is created in the Family Services Division of the Department. The Unit shall be headed by a Juvenile Justice Director.
  2. The Juvenile Justice Director shall have the responsibility and authority to monitor and coordinate all State and participating regional and local programs that deal with juvenile justice issues, including prevention, education, enforcement, adjudication, and rehabilitation.
  3. The Juvenile Justice Director shall ensure that the following occur:
    1. development of a comprehensive plan for a coordinated and sustained statewide program to reduce the number of juvenile offenders, involving State, regional, and local officials in the areas of health, education, prevention, law enforcement, corrections, teen activities, and community wellness;
    2. cooperation among State, regional, and local officials; court personnel; service providers; and law enforcement agencies in the formulation and execution of a coordinated statewide juvenile justice program;
    3. cooperation among appropriate departments, including the Department; the Agency of Education; the Departments of Corrections, of Labor, of Mental Health, of Public Safety, and Disabilities, Aging, and Independent Living; and the Division of Alcohol and Drug Abuse Programs;
    4. a study of issues relating to juvenile justice and development of recommendations regarding changes in law and rules, as deemed advisable; and
    5. compilation of data on issues relating to juvenile justice and analysis, study, and organization of such data for use by educators, researchers, policy advocates, administrators, legislators, and the Governor.

      Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

History

2014. In subdiv. (c)(3), substituted "Division" for "Offices".

- 2013. In subdiv. (c)(3), substituted "the Department; the Agency of Education; the Departments of Corrections, Labor, Mental Health, Public Safety, and Disabilities, Aging, and Independent Living;" for "the department and the departments of education, corrections, employment and training, developmental and mental health services, and public safety," to reflect current departmental names and organization.

Subchapter 5. Youthful Offenders

§§ 5280-5288. Repealed. 2017, No. 72, § 8, eff. July 1, 2018.

History

Former §§ 5280-5288. Former § 5280, relating to commencement of youthful offender proceedings in the Family Division, was derived from 2015, No. 153 (Adj. Sess.), § 1 and was scheduled to take effect on July 1, 2018 but was prospectively repealed by 2017, No. 72 , § 8, eff. July 1, 2018. For related provisions, see chapter 52A of this title, added by 2017, No. 72 , § 5.

Former § 5281, relating to motion in Criminal Division of Superior Court, was derived from 2007, No. 185 (Adj. Sess.), § 2; and amended by 2009, No. 154 (Adj. Sess.), § 227.

Former § 5282, relating to report from the Department, was derived from 2007, No. 185 (Adj. Sess.), § 2; and amended by 2009, No. 154 (Adj. Sess.), § 228.

Former § 5283, relating to hearing in Family Division, was derived from 2007, No. 185 (Adj. Sess.), § 2; and amended by 2009, No. 154 (Adj. Sess.), § 229.

Former § 5284, relating to determination and order, was derived from 2007, No. 185 (Adj. Sess.), § 2; and amended by 2015, No. 5 , § 6, eff. April 9, 2015.

Former § 5285, relating to modification or revocation of disposition, was derived from 2007, No. 185 (Adj. Sess.), § 2; and amended by 2009, No. 154 (Adj. Sess.), § 230; and 2015, No. 153 (Adj. Sess.), § 15.

Former § 5286, relating to review prior to the age of 18, was derived from 2007, No. 185 (Adj. Sess.), § 2; and amended by 2009, No. 154 (Adj. Sess.), § 231.

Former § 5287, relating to termination or continuance of probation, was derived from 2007, No. 185 (Adj. Sess.), § 2; and amended 2009, No. 154 (Adj. Sess.), § 232; and 2015, No. 23 , § 16.

Former § 5288, relating to rights or victims in youthful offender proceedings, was derived from 2007, No. 185 (Adj. Sess.), § 2.

Subchapter 6. Placement in Secure Facilities

History

Amendments--2019 (Adj. Sess.). Act No. 124, § 10 deleted "of Minors" following "Placement" in the subchapter heading.

§ 5291. Detention or treatment of individuals charged as delinquents in secure facilities for the detention or treatment of delinquent children.

  1. Prior to disposition, the court shall have the sole authority to place a child who is in the custody of the Department in a secure facility used for the detention or treatment of delinquent children until the Commissioner determines that a suitable placement is available for the child. The court shall not order placement in a secure facility without a recommendation from the Department that placement in a secure facility is necessary. The court order shall include a finding that no other suitable placement is available and the child presents a risk of injury to himself or herself, to others, or to property.
  2. Absent good cause shown and notwithstanding section 5227 of this title, when a child is placed in a secure facility pursuant to subsection (a) of this section and remains in a secure facility for 45 days following the preliminary hearing, the merits hearing shall be held and merits adjudicated within 45 days of the date of the preliminary hearing or the court shall dismiss the petition with prejudice. If merits have been found, the court shall review the secure facility placement order at the merits hearing.
  3. If a child is placed in a secure facility pursuant to subsection (a) of this section and secure facility placement continues following the merits hearing review pursuant to subsection (b) of this section, the court shall, within 35 days of the merits adjudication:
    1. hold the disposition hearing, or, if disposition is not held within 35 days;
    2. hold a hearing to review the continued secure facility placement.
  4. A child placed in a secure facility on an order pursuant to subsection (a), (b), or (c) of this section with a finding that no other suitable placement is available and the child presents a risk of harm to others or to property shall be entitled to an independent, second evidentiary hearing, which shall be a hearing de novo by a single justice of the Vermont Supreme Court. The Chief Justice may make an appointment or special assignment in accordance with 4 V.S.A. § 22 to conduct the de novo hearing required by this subsection. Unless the parties stipulate to the admission of portions of the trial court record, the de novo review shall be a new evidentiary hearing without regard to the record compiled before the trial court.
  5. Following disposition, the Commissioner shall have the sole authority to place a child who is in the custody of the Department in a secure facility for the detention or treatment of delinquent children pursuant to the Department's administrative policies on admission.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2011, No. 3 , § 96, eff. Feb. 17, 2011; 2017, No. 72 , § 6, eff. July 1, 2018; 2019, No. 124 (Adj. Sess.), § 10.

History

Amendments--2019 (Adj. Sess.). Section heading: Substituted "individuals" for "Minors".

Amendments--2017. Section amended generally.

ANNOTATIONS

Analysis

1. Applicability.

With regard to whether the statutory timeline for adjudicating the merits of a delinquency petition concerning a juvenile being held in a secure treatment facility applies to a delinquency petition in which there is no secured-facility placement order because the subject juvenile has already been placed at a secure facility pursuant to a prior, separate delinquency petition, the statutory timeline does not apply in such situations. In re A.A., - Vt. - , 236 A.3d 1287 (2020).

Although the statutory timeline for adjudicating the merits of a delinquency petition concerning a juvenile being held in a secure facility is mandatory, the plain meaning of its language indicates that it applies only to the particular delinquency petition before the court. In re A.A., - Vt. - , 236 A.3d 1287 (2020).

Because the statutory timeline for adjudicating the merits of a delinquency petition concerning a juvenile being held in a secure facility applied on a case-specific basis, and here defendant juvenile had already been placed at a secure facility pursuant to a prior, separate delinquency petition, the timeline did not apply, and therefore there was no need to dismiss the case. In re A.A., - Vt. - , 236 A.3d 1287 (2020).

2. Hearings.

Delinquency provision requiring an independent, second evidentiary hearing does not apply to the provision which gives the Commissioner of the Department for Children and Families sole authority to place a child in a secure facility in a post-disposition setting. Thus, defendant juvenile, whose case involved a a post-disposition placement decision, was not entitled to a second evidentiary hearing. In re N.M., - Vt. - , - A.3d - (July 16, 2021).

§ 5292. Detention in adult facilities of minors charged or adjudicated as delinquents.

  1. A minor charged with a delinquent act shall not be detained under this chapter in a jail or other facility intended or used for the detention of adults unless the child is alleged to have committed a crime punishable by life imprisonment and it appears to the satisfaction of the court that public safety and protection reasonably require such detention.
  2. A minor who has been adjudicated as a delinquent child shall not by virtue of such adjudication be committed or transferred to an institution or other facility used primarily for the execution of sentences of persons convicted of a crime.
  3. The official in charge of a jail or other facility intended or used for the detention of adult offenders or persons charged with crime shall inform the court immediately when a minor who is or appears to be under the age of 18 years is received at the facility other than pursuant to subsection (a) of this section or section 5293 of this title and shall deliver the minor to the court upon request of the court or transfer the minor to the detention facility designated by the court by order.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009.

§ 5293. Disposition of minors adjudicated as adult offenders; separation of persons under 18 years from adults.

  1. Pretrial detention.
    1. A minor who is under the age of 18 who has been arrested shall not be placed in a facility for adult offenders unless a felony charge has been filed in the Criminal Division of the Superior Court or the Criminal Division of the Superior Court has exercised jurisdiction over the matter and the State's Attorney has determined that a felony charge will be filed without delay. A minor who is eligible for release under 13 V.S.A. chapter 229 shall be released.
      1. A minor who is under the age of 18 who has been arrested for a misdemeanor shall immediately and without first being taken elsewhere: (2) (A) A minor who is under the age of 18 who has been arrested for a misdemeanor shall immediately and without first being taken elsewhere:
        1. be released to his or her custodial parent, guardian, or custodian; or
        2. be delivered to the Criminal Division of the Superior Court.
      2. If the minor is delivered to the Criminal Division of the Superior Court, the arresting officer shall immediately file written notice thereof with the court together with a statement of the reason for taking the minor into custody. A minor who is eligible for release under 13 V.S.A. chapter 229 shall be released. In the event that the minor is not released:
        1. the minor shall not be detained in a facility for adult offenders; and
        2. the court shall defer to the Commissioner of Corrections concerning the facility in which the minor shall be detained.
  2. Sentencing of minor.  If a minor is convicted of an offense in a court of criminal jurisdiction as an adult, the court shall sentence the minor as an adult.
  3. Placement of minors under 16.  The Commissioner of Corrections shall not place a minor under the age of 16 who has been sentenced to a term of imprisonment in a correctional facility used to house adult offenders.
  4. Placement of minors over 16 convicted of felony.  The Commissioner of Corrections may place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a felony and who has been sentenced to a term of imprisonment.
  5. Placement of minor over 16 convicted of misdemeanor.  The Commissioner of Corrections shall not place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a misdemeanor.
  6. Transfer of minor at 18th birthday.  At the 18th birthday of a minor convicted of a misdemeanor, the Commissioner may transfer the minor to a facility for adult offenders.
  7. Applicability.  The provisions of this section shall apply to the commitment of minors to institutions within or outside the State of Vermont.

    Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Substituted "criminal division of the superior court" for "district court" in subdivs. (a)(1), (a)(2)(A)(ii) and (a)(2)(B).

CHAPTER 52A. YOUTHFUL OFFENDERS

Sec.

§ 5280. Commencement of youthful offender proceedings in the Family Division.

  1. A proceeding under this chapter shall be commenced by:
    1. the filing of a youthful offender petition by a State's Attorney; or
    2. transfer to the Family Court of a proceeding from the Criminal Division of the Superior Court as provided in section 5281 of this title.
  2. A State's Attorney may commence a proceeding in the Family Division of the Superior Court concerning a child who is alleged to have committed an offense after attaining 14 years of age but not 22 years of age that could otherwise be filed in the Criminal Division.
  3. If a State's Attorney files a petition under subdivision (a)(1) of this section, the case shall proceed as provided under subsection 5281(b) of this title.
  4. Within 15 days after the commencement of a youthful offender proceeding pursuant to subsection (a) of this section, the youth shall be offered a risk and needs screening, which shall be conducted by the Department or by a community provider that has contracted with the Department to provide risk and needs screenings. The risk and needs screening shall be completed prior to the youthful offender status hearing held pursuant to section 5283 of this title. Unless the court extends the period for the risk and needs screening for good cause shown, the Family Division shall reject the case for youthful offender treatment if the youth does not complete the risk and needs screening within 15 days of the offer for the risk and needs screening.
    1. The Department or the community provider shall report the risk level result of the screening, the number and source of the collateral contacts made, and the recommendation for charging or other alternatives to the State's Attorney.
    2. Information related to the present alleged offense directly or indirectly derived from the risk and needs screening or other conversation with the Department or community-based provider shall not be used against the youth in the youth's criminal or juvenile case for any purpose, including impeachment or cross-examination. However, the fact of participation in risk and needs screening may be used in subsequent proceedings.
  5. The State's Attorney shall refer directly to court diversion a youth alleged to have committed any offense other than those specified in subsection 5204(a) of this title who presents a low to moderate risk to reoffend based on the results of the risk and needs screening, unless the State's Attorney states on the record at the hearing held pursuant to section 5283 of this title why a referral would not serve the ends of justice. If the court diversion program does not accept the case or if the youth fails to complete the program in a manner deemed satisfactory and timely by the provider, the youth's case shall return to the State's Attorney for charging consideration.

    Added 2017, No. 72 , § 5, eff. July 1, 2018; amended 2017, No. 201 (Adj. Sess.), § 8; 2019, No. 45 , § 4, eff. May 30, 2019; 2019, No. 124 (Adj. Sess.), § 8.

History

Amendments--2019 (Adj. Sess.). Subsec. (e): In the first sentence, substituted "The State's Attorney shall refer directly to court diversion" for "If", inserted "alleged to have committed any offense other than those specified in subsection 5204(a) of this title who", and deleted ", the State's Attorney shall refer a youth directly to court diversion" following "needs screening".

Amendments--2019. Subsec. (b): Substituted "14 years of age" for "16 years of age".

Subsec. (d): Added "of the offer for the risk and needs screening" at the end.

Amendments--2017 (Adj. Sess.). Subsecs. (d) and (e): Added.

§ 5281. Motion in Criminal Division of Superior Court.

  1. A motion may be filed in the Criminal Division of the Superior Court requesting that a defendant under 22 years of age in a criminal proceeding who had attained 12 years of age but not 22 years of age at the time the offense is alleged to have been committed be treated as a youthful offender. The motion may be filed by the State's Attorney, the defendant, or the court on its own motion.
  2. Unless the State's Attorney refers the youth directly to court diversion pursuant to subsection 5280(e) of this title, upon the filing of a motion under this section or the filing of a youthful offender petition pursuant to section 5280 of this title, the Family Division shall hold a hearing pursuant to section 5283 of this title. Pursuant to section 5110 of this title, the hearing shall be confidential. Copies of all records relating to the case shall be forwarded to the Family Division. Conditions of release and any Department of Corrections supervision or custody shall remain in effect until:

    the Family Division accepts the case for treatment as a youthful offender and orders conditions of juvenile probation pursuant to section 5284 of this title;

    (2) any conditions of release or bail are modified, amended, or vacated pursuant to 13 V.S.A. chapter 229; or

    the case is otherwise concluded.

    1. If the Family Division rejects the case for youthful offender treatment pursuant to section 5284 of this title, the case shall be transferred to the Criminal Division. The conditions of release imposed by the Criminal Division shall remain in effect, and the case shall proceed as though the motion for youthful offender treatment or youthful offender petition had not been filed. (c) (1)  If the Family Division rejects the case for youthful offender treatment pursuant to section 5284 of this title, the case shall be transferred to the Criminal Division. The conditions of release imposed by the Criminal Division shall remain in effect, and the case shall proceed as though the motion for youthful offender treatment or youthful offender petition had not been filed.
    2. Subject to Rule 11 of the Vermont Rules of Criminal Procedure and Rule 410 of the Vermont Rules of Evidence, the Family Division's denial of the motion for youthful offender treatment and any information related to the youthful offender proceeding shall be inadmissible against the youth for any purpose in the subsequent Criminal Division proceeding.
  3. If the Family Division accepts the case for youthful offender treatment, the case shall proceed to a confidential merits hearing or admission pursuant to sections 5227-5229 of this title.

    Added 2017, No. 72 , § 5, eff. July 1, 2018; amended 2019, No. 45 , § 5, eff. May 30, 2019.

History

Amendments--2019. Subsec. (b): Substituted "Unless the State's Attorney refers the youth directly to court diversion pursuant to subsection 5280(e) of this title, upon" for "Upon" in the introductory language; added the subdiv. (1)-(3) designations; and added subdiv. (2).

§ 5282. Report from the Department.

  1. Within 30 days after the youth has completed the risk and needs screening pursuant to section 5280 of this title, unless the court extends the period for good cause shown or the State's Attorney refers the youth directly to court diversion pursuant to subsection 5280(e) of this title, the Department for Children and Families shall file a report with the Family Division of the Superior Court.
  2. A report filed pursuant to this section shall include the following elements:
    1. a recommendation as to whether diversion is appropriate for the youth because the youth is a low to moderate risk to reoffend;
    2. a recommendation as to whether youthful offender status is appropriate for the youth; and
    3. a description of the services that may be available for the youth.
  3. A report filed pursuant to this section is privileged and shall not be disclosed to any person other than:
    1. the Department;
    2. the court;
    3. the State's Attorney;
    4. the youth, the youth's attorney, and the youth's guardian ad litem;
    5. the youth's parent, guardian, or custodian if the youth is under 18 years of age, unless the court finds that disclosure would be contrary to the best interests of the child;
    6. the Department of Corrections; or
    7. any other person when the court determines that the best interests of the youth would make such a disclosure desirable or helpful.

      Added 2017, No. 72 , § 5, eff. July 1, 2018; amended 2017, No. 201 (Adj. Sess.), § 9; 2019, No. 45 , § 6, eff. May 30, 2019.

History

Amendments--2019. Subsec. (a): Inserted "or the State's Attorney refers the youth directly to court diversion pursuant to subsection 5280(e) of this title" following "good cause shown".

Amendments--2017 (Adj. Sess.). Subsec. (a): Substituted "youth has completed the risk and needs screening pursuant to section 5280 of this title," for "case is transferred to the Family Division or a youthful offender petition is filed in the Family Division".

§ 5283. Hearing in Family Division.

  1. Timeline.  Unless the State's Attorney refers the youth directly to court diversion pursuant to subsection 5280(e) of this title, a youthful offender consideration hearing shall be held not later than 60 days after the transfer of the case from the Criminal Division or filing of a youthful offender petition in the Family Division.
  2. Notice.  Notice of the hearing shall be provided to the State's Attorney; the youth; the youth's parent, guardian, or custodian; the Department; and the Department of Corrections.
  3. Hearing procedure.
    1. If the motion is contested, all parties shall have the right to present evidence and examine witnesses. Hearsay may be admitted and may be relied on to the extent of its probative value. If reports are admitted, the parties shall be afforded an opportunity to examine those persons making the reports, but sources of confidential information need not be disclosed.
    2. For individuals who had attained 18 years of age but not 22 years of age at the time the act is alleged to have been committed, hearings under 5284(a) of this title shall be open to the public. All other youthful offender proceedings shall be confidential.
  4. Burden of proof.  The burden of proof shall be on the moving party to prove by a preponderance of the evidence that a child should be granted youthful offender status. If the court makes the motion, the burden shall be on the youth.
  5. Further hearing.  On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.

    Added 2017, No. 72 , § 5, eff. July 1, 2018; amended 2019, No. 45 , § 7, eff. May 30, 2019.

History

Amendments--2019. Subsec. (a): Substituted "Unless the State's Attorney refers the youth directly to court diversion pursuant to subsection 5280(e) of this title, a" for "A" at the beginning, substituted "consideration" for "status" preceding "hearing", and "60 days" for "35 days".

Subdiv. (c)(2): Added the first sentence, and inserted "other" following "All".

§ 5284. Youthful Offender Determination and Disposition Order.

  1. In a hearing on a motion for youthful offender status, the court shall first consider whether public safety will be protected by treating the youth as a youthful offender. If the court finds that public safety will not be protected by treating the youth as a youthful offender, the court shall deny the motion and transfer the case to the Criminal Division of the Superior Court pursuant to subsection 5281(d) of this title. If the court finds that public safety will be protected by treating the youth as a youthful offender, the court shall proceed to make a determination under subsection (b) of this section.
    1. The court shall deny the motion if the court finds that: (b) (1)  The court shall deny the motion if the court finds that:
      1. the youth is not amenable to treatment or rehabilitation as a youthful offender; or
      2. there are insufficient services in the juvenile court system and the Department for Children and Families and the Department of Corrections to meet the youth's treatment and rehabilitation needs.
    2. The court shall grant the motion if the court finds that:
      1. the youth is amenable to treatment or rehabilitation as a youthful offender; and
      2. there are sufficient services in the juvenile court system and the Department for Children and Families and the Department of Corrections to meet the youth's treatment and rehabilitation needs.
  2. If the court approves the motion for youthful offender treatment after an adjudication pursuant to subsection 5281(d) of this title, the court:
    1. shall approve a disposition case plan and impose conditions of juvenile probation on the youth; and
    2. may transfer legal custody of the youth to a parent, relative, person with a significant relationship with the youth, or Commissioner, provided that any transfer of custody shall expire on the youth's 18th birthday.
  3. The Department for Children and Families and the Department of Corrections shall be responsible for supervision of and providing services to the youth until he or she reaches 22 years of age. Both Departments shall designate a case manager who together shall appoint a lead Department to have final decision-making authority over the case plan and the provision of services to the youth. The youth shall be eligible for appropriate community-based programming and services provided by both Departments.

    Added 2017, No. 72 , § 5, eff. July 1, 2018.

ANNOTATIONS

1. Public safety.

Legislature requires the court to deny youthful offender status if it is contrary to public safety; in doing so, the Legislature decided that the protective purposes of the juvenile statutes and the offender's youth should not outweigh public safety, and the court cannot reorder the Legislature's priorities. Thus, the trial court in revoking defendant's youthful offender status did not err in considering defendant's age in the context of public safety. State v. Suhr, 207 Vt. 379, 189 A.3d 552 (Apr. 27, 2018).

§ 5285. Modification or revocation of disposition.

  1. If it appears that the youth has violated the terms of juvenile probation ordered by the court pursuant to subdivision 5284(c)(1) of this title, a motion for modification or revocation of youthful offender status may be filed in the Family Division of the Superior Court. The court shall set the motion for hearing as soon as practicable. The hearing may be joined with a hearing on a violation of conditions of probation under section 5265 of this title. A supervising juvenile or adult probation officer may detain in an adult facility a youthful offender who has attained 18 years of age for violating conditions of probation.
  2. A hearing under this section shall be held in accordance with section 5268 of this title.
  3. If the court finds after the hearing that the youth has violated the terms of his or her probation, the court may:
    1. maintain the youth's status as a youthful offender, with modified conditions of juvenile probation if the court deems it appropriate;
    2. revoke the youth's status as a youthful offender and transfer the case with a record of the petition, affidavit, adjudication, disposition, and revocation to the Criminal Division for sentencing; or
    3. transfer supervision of the youth to the Department of Corrections with all of the powers and authority of the Department and the Commissioner under Title 28, including graduated sanctions and electronic monitoring.
  4. If a youth's status as a youthful offender is revoked and the case is transferred to the Criminal Division pursuant to subdivision (c)(2) of this section, the court shall enter a conviction of guilty based on the admission to or finding of merits, hold a sentencing hearing, and impose sentence. Unless it serves the interest of justice, the case shall not be transferred back to the Family Division pursuant to section 5203 of this title. When determining an appropriate sentence, the court may take into consideration the youth's degree of progress toward or regression from rehabilitation while on youthful offender status. The Criminal Division shall have access to all Family Division records of the proceeding.

    Added 2017, No. 72 , § 5, eff. July 1, 2018; amended 2017, No. 201 (Adj. Sess.), § 10; 2019, No. 45 , § 8, eff. May 30, 2019.

History

Amendments--2019. Subsec. (d): Inserted "enter a conviction of guilty based on the admission to or finding of merits," following "the court shall" in the first sentence.

Amendments--2017 (Adj. Sess.). Subsec. (d): Added the present second sentence.

ANNOTATIONS

Analysis

1. Revocation.

Legislature requires the court to deny youthful offender status if it is contrary to public safety; in doing so, the Legislature decided that the protective purposes of the juvenile statutes and the offender's youth should not outweigh public safety, and the court cannot reorder the Legislature's priorities. Thus, the trial court in revoking defendant's youthful offender status did not err in considering defendant's age in the context of public safety. State v. Suhr, 207 Vt. 379, 189 A.3d 552 (Apr. 27, 2018).

Trial court did not err in applying to its decision to revoke defendant's youthful offender status the same factors the Legislature provided for granting youthful offender status. State v. Suhr, 207 Vt. 379, 189 A.3d 552 (Apr. 27, 2018).

Trial court erred in revoking defendant's youthful offender status, as it had found that he had never been offered adequate sex-offender treatment, which was particularly important given the underlying sex offense, and it was too speculative to find that he would have violated his probation conditions even if he had received appropriate sex-offender therapy. State v. Suhr, 207 Vt. 379, 189 A.3d 552 (Apr. 27, 2018).

2. Modification.

Trial court properly found that public safety would not be protected if defendant juvenile were granted youthful-offender status, as it found that defendant, who was charged with aggravated assault and had a history of drug and alcohol abuse, had engaged in a new violent act while under the influence of alcohol, despite being underage and under a condition of release that he not drink alcohol, that the juvenile justice system offered no meaningful accountability mechanism because it was entirely a rehabilitative system without punishment, and that defendant had an unstable residential and employment situation. In re B.B., 211 Vt. 272, 224 A.3d 1149 (2019).

§ 5286. Review prior to 18 years of age.

  1. If a youth is on probation as a youthful offender prior to reaching 18 years of age, the Family Division shall review the youth's case before he or she reaches 18 years of age and set a hearing to determine whether the court's jurisdiction over the youth should be continued past 18 years of age. The hearing may be joined with a motion to terminate youthful offender status under section 5285 of this title. The court shall provide notice and an opportunity to be heard at the hearing to the State's Attorney, the youth, the Department for Children and Families, and the Department of Corrections.
  2. After receiving a notice of review under this section, the State may file a motion to modify or revoke pursuant to section 5285 of this title. If such a motion is filed, it shall be consolidated with the review under this section and all options provided for under section 5285 of this title shall be available to the court.
  3. The following reports shall be filed with the court prior to the hearing:
    1. The Department for Children and Families and the Department of Corrections shall jointly report their recommendations, with supporting justifications, as to whether the Family Division should continue jurisdiction over the youth past 18 years of age and, if continued jurisdiction is recommended, propose a case plan for the youth to ensure compliance with and completion of the juvenile disposition.
    2. If the Departments recommend continued supervision of the youthful offender past 18 years of age, the Departments shall report on the services that would be available for the youth.
  4. If the court finds that it is in the best interests of the youth and consistent with community safety to continue the case past 18 years of age, it shall make an order continuing the court's jurisdiction up to 22 years of age. The Department for Children and Families and the Department of Corrections shall jointly develop a case plan for the youth and coordinate services and share information to ensure compliance with and completion of the juvenile disposition.
  5. If the court finds that it is not in the best interests of the youth to continue the case past 18 years of age, it shall terminate the disposition order, discharge the youth, and dismiss the case in accordance with subsection 5287(c) of this title.

    Added 2017, No. 72 , § 5, eff. July 1, 2018; amended 2019, No. 45 , § 9, eff. May 30, 2019.

History

Amendments--2019. Subsec. (a): Substituted "on probation" for "adjudicated" following "If a youth is".

Subsecs. (d), (e): Substituted "interests" for "interest" following "in the best".

§ 5287. Termination or continuance of probation.

  1. A motion or stipulation may be filed at any time in the Family Division requesting that the court terminate the youth's status as a youthful offender and discharge him or her from probation. The motion may be filed by the State's Attorney, the youth, the Department, or the court on its own motion.
  2. In determining whether a youth has successfully completed the terms of probation, the court shall consider:
    1. the degree to which the youth fulfilled the terms of the case plan and the probation order;
    2. the youth's performance during treatment;
    3. reports of treatment personnel; and
    4. any other relevant facts associated with the youth's behavior.
  3. If the court finds that the youth has successfully completed the terms of the probation order, it shall terminate youthful offender status, discharge the youth from probation, and file a written order dismissing the Family Division case. The Family Division shall provide notice of the dismissal to the Criminal Division, which shall dismiss the criminal case.
  4. Upon discharge and dismissal under subsection (c) of this section, all records relating to the case in the Criminal Division shall be expunged, and all records relating to the case in the Family Court shall be sealed pursuant to section 5119 of this title.
  5. If the court denies the motion to discharge the youth from probation, the court may extend or amend the probation order as it deems necessary.
  6. Upon the termination of the period of probation, the youth shall be discharged from probation.

    Added 2017, No. 72 , § 5, eff. July 1, 2018; amended 2019, No. 124 (Adj. Sess.), § 9.

History

Amendments--2019 (Adj. Sess.). Subsec. (a): inserted "or stipulation" in the first sentence and deleted the last sentence.

Subsec. (f): Added.

§ 5288. Rights of victims in youthful offender proceedings.

  1. The victim in a proceeding involving a youthful offender shall have the following rights:
    1. to be notified by the prosecutor in a timely manner when a court proceeding is scheduled to take place and when a court proceeding to which he or she has been notified will not take place as scheduled;
    2. to be present during all court proceedings subject to the provisions of Rule 615 of the Vermont Rules of Evidence and to express reasonably his or her views concerning the offense and the youth;
    3. to request notification by the agency having custody of the youth before the youth is released from a residential facility;
    4. to be notified by the prosecutor as to the final disposition of the case; and
    5. to be notified by the prosecutor of the victim's rights under this section.
  2. In accordance with court rules, at a hearing on a motion for youthful offender treatment, the court shall ask if the victim is present and, if so, whether the victim would like to be heard regarding disposition. In ordering disposition, the court shall consider any views offered at the hearing by the victim. If the victim is not present, the court shall ask whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into consideration in ordering disposition.
  3. No youthful offender proceeding shall be delayed or voided by reason of the failure to give the victim the required notice or the failure of the victim to appear.
  4. As used in this section, "victim" shall have the same meaning as in 13 V.S.A. § 5301(4) .

    Added 2017, No. 72 , § 5, eff. July 1, 2018.

CHAPTER 53. CHILDREN IN NEED OF CARE OR SUPERVISION

Sec.

§ 5301. Taking into custody.

A child may be taken into custody:

  1. pursuant to an order of the Family Division of the Superior Court under the provisions of this chapter;
  2. by an officer when the officer has reasonable grounds to believe that the child is in immediate danger from his or her surroundings and that removal from the child's current home is necessary for the child's protection;
  3. by an officer when the officer has reasonable grounds to believe that the child has run away from a custodial parent, a foster parent, a guardian, a custodian, a noncustodial parent lawfully exercising parent-child contact, or a care provider.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Substituted "family division of the superior court" for "family court" in subdiv. (1).

§ 5302. Request for emergency care order.

  1. If an officer takes a child into custody pursuant to section 5301 of this title, the officer shall immediately notify the child's custodial parent, guardian, or custodian and release the child to the care of the child's custodial parent, guardian, or custodian unless the officer determines that the child's immediate welfare requires the child's continued absence from the home.
  2. If the officer determines that the child's immediate welfare requires the child's continued absence from the home:
    1. The officer shall remove the child from the child's surroundings, contact the Department, and deliver the child to a location designated by the Department. The Department shall have the authority to make reasonable decisions concerning the child's immediate placement, safety, and welfare pending the issuance of an emergency care order.
    2. The officer or a social worker employed by the Department for Children and Families shall prepare an affidavit in support of a request for an emergency care order and provide the affidavit to the State's Attorney. The affidavit shall include the reasons for taking the child into custody and, to the degree known, potential placements with which the child is familiar; the names, addresses, and telephone number of the child's parents, guardian, custodian, or care provider; and the name, address, and telephone number of any relative who has indicated an interest in taking temporary custody of the child. The officer or social worker shall contact the Department and the Department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer or social worker if the Department has additional information with respect to the child or the family.
  3. If the child is taken into custody during regular court hours, the State's Attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child's custodial parent, guardian, or custodian. If the child is taken into custody after regular court hours or on a weekend or holiday, the State's Attorney or officer shall contact a judge to request an emergency care order or return the child to the child's custodial parent, guardian, or custodian. If an order is granted, the State's Attorney shall file the supporting affidavit with the court on the next day that the court is open.
  4. If the judge denies a request for an emergency care order, the State's Attorney shall direct the immediate return of the child to the child's custodial parent, guardian, or custodian.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2015, No. 60 , § 7.

History

Amendments--2015. Section amended generally.

§ 5303. Procedure for runaway children.

  1. If an officer takes a child into custody pursuant to subdivision 5301(3) of this title, the officer shall deliver the child to:
    1. the child's custodial parent, foster parent, guardian, custodian, or noncustodial parent lawfully exercising parent-child contact; or
    2. a shelter designated by the Department pursuant to section 5304 of this title as qualified to assist children who have run away for the purpose of reuniting them with their parents, guardian, or legal custodian.
  2. Upon delivery of a child to a shelter, the shelter program director or his or her designee shall notify the child's parents, guardian, or custodian that the child has been taken into custody and make reasonable efforts to mediate the differences between the parties.
  3. A child may remain at a designated shelter for a period not to exceed 21 days.
  4. Upon expiration of the 21-day period or sooner at the request of the child or the custodial parent:
    1. the child shall be released to his or her custodial parent, foster parent, guardian, custodian, or noncustodial parent lawfully exercising parent-child contact; or
    2. an officer shall seek an emergency care order pursuant to section 5302 of this title.
  5. Unless otherwise ordered by the court, the custody status of the child shall remain the same during the period of time the child is at the shelter.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2017, No. 9 , § 1, eff. April 25, 2017.

History

Amendments--2017. Substituted "21" for "seven" preceding "day" in subsec. (c) and "21-day" for "seven-day" preceding "period" in subsec. (d).

§ 5304. Designated shelters for runaway children.

The Commissioner shall designate shelters throughout the State where a child may be housed for a period not to exceed 21 days if he or she is:

  1. taken into custody pursuant to subdivision 5301(3) of this title; or
  2. referred by other means described in the policies of the Department for Children and Families.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2017, No. 9 , § 2, eff. April 25, 2017.

History

Amendments--2017. Rewrote the section.

§ 5305. Emergency care order; conditional custody order.

  1. Transfer of temporary custody.  If the court determines that the child's continued residence in the home is contrary to the child's welfare, the court may issue an emergency care order transferring temporary custody of the child to the Department pending a temporary care hearing. The determination may be made ex parte, provided that it is reasonably supported by the affidavit prepared in accordance with section 5302 of this title.
  2. Contents of emergency care order.  The emergency care order shall contain:
    1. a written finding that the child's continued residence in the home is contrary to the child's welfare and the factual allegations that support that finding;
    2. the date, hour, and place of the temporary care hearing to be held pursuant to section 5307 of this title; and
    3. notice of a parent's right to counsel at the temporary care hearing.
  3. Conditional custody order.  If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian subject to such conditions and limitations necessary and sufficient to protect the child pending a temporary care hearing, the court may deny the request for an emergency care order and issue an emergency conditional custody order. An emergency conditional custody order shall contain the date, hour, and place of the temporary care hearing and notice of a parent's right to counsel at the hearing.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

§ 5306. Notice of emergency care order and temporary care hearing.

  1. Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the custodial parent, guardian, or custodian of the child. If delivery cannot be made in a timely manner, the officer shall otherwise notify or cause to be notified the custodial parent of the order, the date, the time, and place of the temporary care hearing, and the parent's right to counsel. If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate such persons.
  2. Notice to noncustodial parent.  The Department shall make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with the emergency care order or conditional custody order; notice of the date, hour, and place of the temporary care hearing; and right to counsel. If the noncustodial parent cannot be located, the Department shall provide to the court a summary of the efforts made to locate the parent.
  3. Failure to locate.  The hearing shall not be delayed by reason of not being able to locate either the custodial or noncustodial parent.
  4. Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:
    1. The State's Attorney.
    2. A representative of the Department.
    3. An attorney to represent the child.
    4. A guardian ad litem for the child.
    5. An attorney to represent each parent. The attorney may be court-appointed in the event the parent is eligible, or may be an attorney who has entered an appearance on behalf of a parent.

      Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

§ 5307. Temporary care hearing.

  1. A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5305 of this title. State holidays shall be excluded from the computation of 72 hours. If the custodial parent, guardian, or custodian has not been notified in accordance with section 5306 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.
  2. If the State's Attorney is seeking a temporary care order, he or she shall file a petition in accordance with section 5308 of this title prior to the temporary care hearing. If the State's Attorney elects not to file a petition, he or she shall so notify the court, and the court shall vacate any temporary order and order the return of the child to the custodial parent, guardian, or custodian.
  3. The following persons shall be present at the temporary care hearing:
    1. The child, unless the child is under 10 years of age and the presence of the child is waived by the child's attorney. For good cause shown, the court may waive the presence of a child who is 10 years of age or older.
    2. The child's custodial parent, guardian, or custodian, unless the custodial parent, guardian, or custodian cannot be located or fails to appear in response to notice.
    3. The child's guardian ad litem.
    4. An attorney for the child.
    5. An attorney for the custodial parent, if requested.
    6. The Department.
    7. The State's Attorney.
  4. A noncustodial parent and his or her attorney shall have the right to be present at the hearing; however, the hearing shall not be delayed by reason of the inability of the Department to locate the noncustodial parent.
  5. The Department shall provide the following information to the court at the hearing:
    1. Any reasons for the child's removal that are not set forth in the affidavit required pursuant to subsection 5302(b) of this title.
    2. Services, if any, provided to the child and the family in an effort to prevent removal.
    3. The need, if any, for continued custody of the child with the Department, pending a hearing to adjudicate the merits of the petition.
    4. Services that could facilitate the return of the child to the custodial parent, guardian, or custodian.
      1. The identity and location of a noncustodial parent, a relative, or person with a significant relationship with the child known to the Department who may be appropriate, capable, willing, and available to assume temporary legal custody of the child. If the noncustodial parent cannot be located, the Department shall provide to the court a summary of the efforts made to locate the parent. (5) (A) The identity and location of a noncustodial parent, a relative, or person with a significant relationship with the child known to the Department who may be appropriate, capable, willing, and available to assume temporary legal custody of the child. If the noncustodial parent cannot be located, the Department shall provide to the court a summary of the efforts made to locate the parent.
      2. With respect to any person whom the Department identifies pursuant to this subdivision, the Department shall conduct an assessment of the suitability of the person to care for the child. The assessment shall include consideration of the person's ability to care for the child's needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection (e), and a check of allegations of prior child abuse or neglect by the person or by other adults in the person's home. The court may continue the hearing if necessary to permit the Department to complete the assessment.
      3. The Department shall request from the Vermont Crime Information Center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision. The request shall be in writing and shall be accompanied by a release signed by the person. The Department through the Vermont Crime Information Center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed. If no disqualifying record is identified at the state level, the Department through the Vermont Crime Information Center shall request from the Federal Bureau of Investigation a national criminal history record check of the person's criminal history. The request to the FBI shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont Crime Information Center. The Vermont Crime Information Center shall send the Department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the Department that no record exists. The Department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont Crime Information Center. Upon completion of the process under this subdivision, the person's fingerprint card shall be destroyed.
    5. Additional information as required by the Uniform Child Custody Jurisdiction and Enforcement Act pursuant to 15 V.S.A. chapter 20 and the Indian Child Welfare Act pursuant to 25 U.S.C. § 1901 et seq.
  6. All parties shall have the right to present evidence on their own behalf and examine witnesses. Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible. The court may, in its discretion, limit testimony and evidence to only that which goes to the issues of removal of the child from the home and the child's temporary legal custody.
  7. The temporary care hearing shall also be a preliminary hearing on the petition.
  8. The Department shall provide information to relatives and others with a significant relationship with the child about options to take custody or participate in the care and placement of the child, about the advantages and disadvantages of the options, and about the range of available services and supports.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2009, No. 97 (Adj. Sess.), § 8; 2011, No. 29 , § 4; 2013, No. 119 (Adj. Sess.), § 19.

History

Reference in text. The Federal Bureau of Investigation, referred to in subdiv. (e)(5)(C), is codified as 28 U.S.C. § 531 et seq.

Amendments--2013 (Adj. Sess.). Subdiv. (e)(5)(C): Substituted "Crime Information Center" for "Criminal Information Center" throughout the subdivision.

Amendments--2011. Subdiv. (e)(6): Inserted "and Enforcement" preceding "Act" and substituted "chapter 20 of Title 15" for "15 V.S.A. § 1037".

Amendments--2009 (Adj. Sess.) Subsec. (h): Added.

ANNOTATIONS

Analysis

1. Presentation of evidence.

Because neither parent objected to the family court's failure to take evidence or sought to introduce evidence at a temporary care hearing or at any subsequent hearing, there was no basis for their claim that the family court violated their due process rights by improperly failing to hold a contested evidentiary hearing at the temporary care hearing. Furthermore, under the statute governing temporary care hearings, "all parties shall have the right to present evidence," but nothing in the statutory scheme requires it. In re D.S., 201 Vt. 558, 145 A.3d 828 (2016).

2. Relationship to other provisions.

Petitioners, whose grandson had been adjudicated a child in need of care or supervision, were not entitled to a hearing before the Human Services Board, as the fact that the Department for Children and Families was compelled by statute to assess relatives before informing the family division of their willingness and ability to assume temporary legal custody of a child did not make petitioners "recipients of social services" under the statute governing hearings before the board. In re Appeal of T.O. & L.O., - Vt. - , - A.3d - (June 11, 2021).

§ 5308. Temporary care order.

  1. The court shall order that legal custody be returned to the child's custodial parent, guardian, or custodian unless the court finds by a preponderance of the evidence that a return home would be contrary to the best interests of the child because any one of the following exists:
    1. A return of legal custody could result in substantial danger to the physical health, mental health, welfare, or safety of the child.
    2. The child or another child residing in the same household has been physically or sexually abused by a custodial parent, guardian, or custodian, or by a member of the child's household, or another person known to the custodial parent, guardian, or custodian.
    3. The child or another child residing in the same household is at substantial risk of physical or sexual abuse by a custodial parent, guardian, or custodian, or by a member of the child's household, or another person known to the custodial parent, guardian, or custodian. It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:
      1. a custodial parent, guardian, or custodian receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and
      2. a custodial parent, guardian, or custodian knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.
    4. The custodial parent, guardian, or custodian has abandoned the child.
    5. The child or another child in the same household has been neglected and there is substantial risk of harm to the child who is the subject of the petition.
  2. Upon a finding that a return home would be contrary to the best interests of the child, the court may issue such temporary orders related to the legal custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child, including:
    1. a conditional custody order returning or granting legal custody of the child to the custodial parent, guardian, custodian, noncustodial parent, relative, or a person with a significant relationship with the child, subject to such conditions and limitations as the court may deem necessary and sufficient;
    2. an order transferring temporary legal custody of the child to a noncustodial parent or to a relative;
    3. an order transferring temporary legal custody of the child to a person with a significant relationship with the child; or
    4. an order transferring temporary legal custody of the child to the Commissioner.
  3. The court shall consider orders and findings from other proceedings relating to the custody of the child, the child's siblings, or children of any adult in the same household as the child.
  4. In considering an order under subsection (b) of this section, the court may order the Department to conduct an investigation of a person seeking custody of the child, and the suitability of that person's home, and file a written report of its findings with the court. The court may place the child in the temporary custody of the Commissioner, pending such investigation.
  5. If the court transfers legal custody of the child, the court shall issue a written temporary care order.
    1. The order shall include:
      1. A finding that remaining in the home is contrary to the best interests of the child and the facts upon which that finding is based.
      2. A finding as to whether reasonable efforts were made to prevent unnecessary removal of the child from the home. If the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.
    2. The order may include other provisions as may be in the best interests of the child, including:
      1. establishing parent-child contact and terms and conditions for that contact;
      2. requiring the Department to provide the child with services, if legal custody of the child has been transferred to the Commissioner;
      3. requiring the Department to refer a parent for appropriate assessments and services, including a consideration of the needs of children and parents with disabilities, provided that the child's needs are given primary consideration;
      4. requiring genetic testing if parentage of the child is at issue;
      5. requiring the Department to make diligent efforts to locate the noncustodial parent;
      6. requiring the custodial parent to provide the Department with names of all potential noncustodial parents and relatives of the child; and
      7. establishing protective supervision and requiring the Department to make appropriate service referrals for the child and the family, if legal custody is transferred to an individual other than the Commissioner.
    3. In his or her discretion, the Commissioner may provide assistance and services to children and families to the extent that funds permit, notwithstanding subdivision (2)(B) of this subsection.

      Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2015, No. 5 , § 4, eff. April 9, 2015; 2015, No. 23 , § 61; 2015, No. 60 , § 8.

History

Amendments--2015. Act Nos. 5 and 23 substituted "custodian" for "guardian" preceding "has abandoned" in subdiv. (a)(4).

Act No. 60 amended section generally.

ANNOTATIONS

1. Efforts to prevent removal.

Mother could not now challenge a termination of parental rights order through a belated claim that the Department for Children and Families (DCF) failed to make reasonable efforts to prevent the child's removal from his home. During the lengthy period when the mother played a limited role in the child's life and agreed to other family members assuming custody of the child, she made no progress in reaching a point where she could care for the child. In re D.C., 193 Vt. 101, 71 A.3d 1191 (2012).

Whether the Department for Children and Families made reasonable efforts to prevent a child's removal from his home is a separate question from, and not a prerequisite to, the issue of whether termination of parental rights is warranted under the statutory criteria regarding the best interests of the child. In re D.C., 193 Vt. 101, 71 A.3d 1191 (2012).

§ 5309. Filing of a petition.

  1. The State's Attorney having jurisdiction shall prepare and file a petition alleging that a child is in need of care or supervision upon the request of the Commissioner or, in the event the child is truant from school, upon the request of the superintendent of the school district in which the child is enrolled or resides. If the State's Attorney fails to file a petition within a reasonable amount of time, the Department or the superintendent of the school district may request that the Attorney General file a petition on behalf of the Department.
  2. If the court has issued an emergency care order placing the child who is the subject of the petition in the temporary legal custody of the Department or has issued a conditional custody order, the State's Attorney shall file the petition on or before the date of the temporary care hearing.
  3. A petition may be withdrawn by the State's Attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title.
  4. Upon the request of the Secretary of Human Services, the State's Attorney may file a petition pursuant to subsection (a) of this section alleging that a 16- to 17.5-year-old youth who is not in the custody of the State is a child in need of care or supervision under subdivision 5102(2)(B)(ii) of this title when the child meets the criteria set forth in subdivision 5102(2)(B)(ii) of this title. The petition shall be accompanied by a report from the Department that sets forth facts supporting the specific criteria of subdivision 5102(2)(B)(ii) of this title and that it is in the best interests of the child to be considered as a child in need of care or supervision.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

§ 5310. Petition; contents.

  1. The petition shall be supported by an affidavit of an officer or the Department.
  2. The petition shall contain the following:
    1. A concise statement of the facts that support the conclusion that the child is a child in need of care or supervision together with a statement that it is in the best interests of the child that the proceedings be brought.
    2. The name, date of birth, telephone number, and residence address, if known, of the child, the custodial and noncustodial parents, the guardian or custodian of the child if other than parent. If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152 , the petition shall so specify.
    3. Jurisdictional information required pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, 15 V.S.A. chapter 20.

      Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

History

2014. In subdiv. (b)(3), added "and Enforcement" before "Act" and substituted "15 V.S.A. chapter 20" for "15 V.S.A. § 1037 et seq." to correct references in the text.

§ 5311. Service of summons and petition; no request for temporary care order.

  1. When the State's Attorney files a petition but does not request a temporary care order, the court shall set a date for a preliminary hearing on the petition no later than 15 days from the date the petition is filed and issue a judicial summons addressed to the custodial parent, guardian, custodian, or care provider. A copy of the petition shall be attached to the summons. The court shall make reasonably diligent efforts to serve a noncustodial parent with a copy of the summons and petition.
  2. The summons shall contain:
    1. the name and address of the person to whom the notice is directed;
    2. the date, time, and place for the preliminary hearing on the petition;
    3. the name of the minor on whose behalf the petition has been brought;
    4. notice of a parent's right to counsel;
    5. a statement that the parent, guardian, or custodian may be liable for the cost of the support of a child if the child is placed in the legal custody of the Department;
    6. an order directing the parent, guardian, custodian, or care provider to appear at the hearing with the child.
  3. The summons and petition may be served by mailing a copy by certified mail return receipt requested to the child and to the child's parent, guardian, custodian, or care provider. Service of the summons and petition may also be made by any sheriff, deputy, or constable. The court shall provide a copy of the summons to the State's Attorney and a copy of the summons and petition to the Department and the attorney for the child.
  4. Notice and a copy of the petition shall be served on all persons required to receive notice as soon as possible after the petition is filed and at least five days prior to the date set for the preliminary hearing.
  5. A party may waive service of the petition and notice by written stipulation or by voluntary appearance at the hearing.
  6. Once a parent, guardian, or custodian has been served, the court shall provide notice of hearing either directly or by mail. The parent shall be responsible for providing the court with information regarding any changes in address.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

§ 5312. Failure to appear at preliminary hearing.

  1. If a parent, guardian, or custodian has been served by certified mail with the petition and notice of hearing and fails to appear at the preliminary hearing, the court may order that the parent, guardian, or custodian be served with a judicial summons ordering the person to appear in court with the child at a specified date and time.
  2. If, after being summoned to appear, the parent, guardian, or custodian fails to appear or fails to bring the child to court as ordered, the court may issue a pick-up order or warrant pursuant to section 5108 of this title.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

§ 5313. Timelines for pretrial and merits hearing.

  1. Pretrial hearing.  At the time of the temporary care hearing or at the preliminary hearing on the petition if there is no request for temporary legal custody, the court shall set a pretrial hearing on the petition. The hearing shall be held within 15 days of the temporary care hearing or the preliminary hearing. In the event that there is no admission or dismissal at or before the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.
  2. Merits hearing.  If the child who is the subject of the petition has been removed from the legal custody of the custodial parent, guardian, or custodian pursuant to a temporary care order, a merits hearing shall be held and merits adjudicated no later than 60 days from the date the temporary care order is issued, except for good cause shown. In all other cases, merits shall be adjudicated in a timely manner in the best interests of the child.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

§ 5314. Filing of initial case plan.

  1. If a temporary care order is issued transferring legal custody of the child to the Commissioner, the Department shall prepare and file with the court an initial case plan for the child and the family within 60 days of removal of a child from home. The Department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.
  2. The initial case plan shall not be used or referred to as evidence prior to a finding that a child is in need of care or supervision.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

§ 5315. Merits adjudication.

  1. At a hearing on the merits of a petition, the State shall have the burden of establishing by a preponderance of the evidence that the child is in need of care and supervision. In its discretion, the court may make findings by clear and convincing evidence.
  2. The parties may stipulate to the merits of the petition. Such stipulation shall include a stipulation as to the facts that support a finding that the child is in need of care and supervision.
  3. If the merits are contested, all parties shall have the right to present evidence on their own behalf and to examine witnesses.
  4. A merits hearing shall be conducted in accordance with the Vermont Rules of Evidence. A finding of fact made after a contested temporary care hearing based on nonhearsay evidence may be adopted by the court as a finding of fact at a contested merits hearing, provided that a witness who testified at the temporary care hearing may be recalled by any party at a contested merits hearing to supplement his or her testimony.
  5. If the merits are contested, the court after hearing the evidence shall make its findings on the record.
  6. If the court finds that the allegations made in the petition have not been established, the court shall dismiss the petition and vacate any temporary orders in connection with this proceeding. A dismissal pursuant to this subsection is a final order subject to appeal.
  7. If the court finds that the allegations made in the petition have been established based on the stipulation of the parties or on the evidence if the merits are contested, the court shall order the Department to prepare a disposition case plan not later than seven business days before a scheduled disposition hearing. An adjudication pursuant to this subsection is not a final order subject to appeal separate from the resulting disposition order.
  8. The court in its discretion and with the agreement of the parties may waive the preparation of a disposition case plan and proceed directly to disposition based on the initial case plan filed with the court pursuant to section 5314 of this title.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2015, No. 153 (Adj. Sess.), § 28.

History

Amendments--2015 (Adj. Sess.). Subsec. (f): Added the second sentence.

Subsec. (g): Substituted "not later than seven business days before a scheduled disposition" for "within 28 days of the merits hearing and shall set the matter for a disposition" in the first sentence, and added the second sentence.

ANNOTATIONS

Analysis

1. Adjudication supported.

Child was properly adjudicated as a child in need of supervision based on the mother's admission that her substance abuse had an impact on the child, which was made in the context of stipulating to a concession that her behavior of long-term substance abuse and her failure to access and engage in services to address her use rendered the child without proper parental care necessary for his well-being. In re B.R., 196 Vt. 304, 97 A.3d 867 (2014).

Admissible testimony established that a child was living, and continued to live, with his parents in the same household until around the time that the child was in need of care or supervision petition was filed, as the social worker's failure to visit the home during a particular period did not render her testimony inadmissible. In re B.R., 196 Vt. 304, 97 A.3d 867 (2014).

Findings that a child's allegations of abuse by the father were the product of the mother's coaching, that this had caused psychological harm to the child, and that this posed a continuing risk of harm were sufficient to support the judgment that the child was a child in need of care or supervision. In re M.A., 193 Vt. 665 (mem.), 60 A.3d 732 (2012).

2. Review.

Merits decision in a child-in-need-of-care-or-supervision proceeding is a final order, and failure to bring an appeal of that order within 30 days bars subsequent challenges to the order. In re D.D., 194 Vt. 508, 82 A.3d 1143 (2013).

Given the uncertainty regarding whether a merits decision child-in-need-of-care-or-supervision proceeding had to be appealed immediately or could instead be combined with an appeal of disposition, it would be fundamentally unfair to foreclose a father from appealing the merits decision where important rights were at stake. In re D.D., 194 Vt. 508, 82 A.3d 1143 (2013).

3. Standard.

In a proceeding involving a child in need of supervision, the trial court properly focused on the child's welfare, rather than on the respective unfitness of each parent. In re B.R., 196 Vt. 304, 97 A.3d 867 (2014).

§ 5315a. Merits stipulation.

  1. At any time after the filing of the CHINS petition and prior to an order of adjudication on the merits, the court may approve a written stipulation to the merits of the petition and any or all elements of the disposition plan, including the permanency goal, placement, visitation, or services.
  2. The court may approve a written stipulation if:
    1. the parties to the petition, as defined in subdivision 5102(22) of this title, agree to the terms of the stipulation; and
    2. the court determines that:
      1. the agreement between the parties is voluntary;
      2. the parties to the agreement understand the nature of the allegation; and
      3. the parties to the agreement understand the rights waived if the court approves of and issues an order based upon the stipulation.

        Added 2015, No. 153 (Adj. Sess.), § 29.

ANNOTATIONS

Analysis

1. In general.

As the family court plainly had jurisdiction over the category of case and was explicitly authorized to approve a written stipulation to the merits of the petition, even if it improperly adjudicated a child as a child in need of care or supervision based on the mother's stipulation alone, the judgment was not void for lack of subject-matter jurisdiction. For the same reason, the parents' argument that the adjudication was not supported by sufficient evidence because it was based on pre-birth circumstances was insufficient to render the judgment void. In re C.L.S., 211 Vt. 344, 225 A.3d 644 (2020).

2. Acceptance of stipulation.

Trial court did not commit plain error in accepting the parents' stipulation that the children were in need of care or supervision. While the parents might have benefitted from a more thorough discussion with the trial court, the record did not show that they failed to understand the rights they were giving up by entering their stipulation. In re H.T., 211 Vt. 476, 227 A.3d 504 (2020), cert denied, S.T. v. VT Dep't for Children and Families, 2020 U.S. LEXIS 4397, - U.S. - , 141 S. Ct. 418, 208 L. Ed. 2d 121 (U.S. 2020).

3. Parties to stipulation.

Mother's husband had the authority to enter a stipulation that the child was a child in need of care and supervision, as he was the child's custodian at that time as well as the presumptive legal parent by virtue of his marriage to the mother at the time of the child's birth; furthermore, it was not necessary for the mother to join the stipulation, as she was a noncustodial parent because she was incarcerated at the time and did not have the right or responsibility over the child's routine daily care or control. In re M.P., 211 Vt. 20, 219 A.3d 1315 (2019).

§ 5316. Disposition case plan.

  1. Following a finding by the court that a child is in need of care or supervision, the Department shall file a disposition case plan ordered pursuant to subsection 5315(g) of this title not later than seven business days before the scheduled disposition hearing.
  2. A disposition case plan shall include, as appropriate:
    1. The long-term goal for a child found to be in need of care and supervision is a safe and permanent home. A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal. The plan shall specify whether permanency will be achieved through reunification with a custodial parent, guardian, or custodian; adoption; permanent guardianship; or other permanent placement. In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.
    2. An assessment of the child's medical, psychological, social, educational, and vocational needs.
    3. A description of the child's home, school, community, and current living situation.
    4. An assessment of the family's strengths and risk factors, including a consideration of the needs of children and parents with disabilities, provided that the child's needs are given primary consideration.
    5. A statement of family changes needed to correct the problems necessitating State intervention, with timetables for accomplishing the changes.
    6. A recommendation with respect to legal custody for the child and a recommendation for parent-child contact and sibling contact, if appropriate.
    7. A plan of services that shall describe the responsibilities of the child; the parents, guardian, or custodian; the Department; other family members; and treatment providers, including a description of the services required to achieve the permanency goal. The plan shall also address the minimum frequency of contact between the social worker assigned to the case and the family.
    8. A request for child support.
    9. Notice to the parents that failure to accomplish substantially the objectives stated in the plan within the time frames established may result in termination of parental rights.

      Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2015, No. 23 , § 62; 2015, No. 153 (Adj. Sess.), § 30.

History

Amendments--2015 (Adj. Sess.). Subsec. (a): Amended generally.

Amendments--2015. Subdiv. (b)(1): Deleted the subdivision heading.

§ 5317. Disposition hearing.

  1. Timeline.   A disposition hearing shall be held no later than 35 days after a finding that a child is in need of care and supervision.
  2. Hearing procedure.  If disposition is contested, all parties shall have the right to present evidence and examine witnesses. Hearsay may be admitted and may be relied on to the extent of its probative value. If reports are admitted, the parties shall be afforded an opportunity to examine those making the reports, but sources of confidential information need not be disclosed.
  3. Standard of proof.  If the court terminates the parental rights of one or both parents, the standard of proof on the issue of termination shall be clear and convincing evidence. On all other issues, the standard of proof shall be a preponderance of the evidence.
  4. Termination of parental rights.  If the Commissioner or the attorney for the child seeks an order at disposition terminating the parental rights of one or both parents and transfer of legal custody to the Commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.
  5. Further hearing.  On its own motion or on the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case. The court shall make an appropriate order for the temporary care of the child pending a final disposition order. The court shall give scheduling priority to cases in which the child has been removed from home.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

ANNOTATIONS

1. Disposition.

In its decision In re B.C., the Vermont Supreme Court noted that a termination petition starts a new proceeding if it is not part of the initial disposition process, but to the extent that that language can be taken as a ruling that disposition generally, and termination of parental rights at disposition specifically, does not start a new proceeding, this interpretation is erroneous. In view of the Court's conclusion that a child in need of care or supervision merits adjudication is a final appealable order, disposition is necessarily a separate proceeding, irrespective of whether termination is sought at that time; it is separately defined by statute and requires separate procedures. In re C.P., 193 Vt. 29, 71 A.3d 1142 (2012).

§ 5318. Disposition order.

  1. Custody.  At disposition, the court shall make such orders related to legal custody for a child who has been found to be in need of care and supervision as the court determines are in the best interests of the child, including:
    1. An order continuing or returning legal custody to the custodial parent, guardian, or custodian. The order may be subject to conditions and limitations.
    2. When the goal is reunification with a custodial parent, guardian, or custodian, an order transferring temporary custody to a noncustodial parent, a relative, or a person with a significant relationship with the child. The order may provide for parent-child contact.
    3. An order transferring legal custody to a noncustodial parent and closing the juvenile proceeding. The order may provide for parent-child contact with the other parent. Any orders transferring legal custody to a noncustodial parent issued under this section shall not be confidential and shall be made a part of the record in any existing parentage or divorce proceeding involving the child. On the motion of a party or on the court's own motion, the court may order that a sealed copy of the disposition case plan be made part of the record in a divorce or parentage proceeding involving the child.
    4. An order transferring legal custody to the Commissioner.
    5. An order terminating all rights and responsibilities of a parent by transferring legal custody and all residual parental rights to the Commissioner without limitation as to adoption.
    6. An order of permanent guardianship pursuant to 14 V.S.A. § 2664 .
    7. An order transferring legal custody to a relative or another person with a significant relationship with the child. The order may be subject to conditions and limitations and may provide for parent-child contact with one or both parents. The order shall be subject to review pursuant to subsection 5320a(b) of this title.
  2. Case plan.  If the court orders the transfer of custody pursuant to subdivision (a)(2), (4), or (5) of this section, the court shall establish a permanency goal for the minor child and adopt a case plan prepared by the Department that is designed to achieve the permanency goal. If the court determines that the plan proposed by the Department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the Department and order the Department to prepare and submit a revised plan for court approval.
  3. Sixteen- to 17.5-year-olds.  In the event that custody of a 16- to 17.5-year-old is transferred to the Department pursuant to a petition filed under subsection 5309(d) of this title services to the child and to his or her family shall be provided through a coordinated effort by the Agencies of Human Services and of Education and community-based interagency teams.
  4. Modification.  A disposition order is a final order that may only be modified based on the stipulation of the parties or pursuant to a motion to modify brought under section 5113 of this title.
  5. Findings.  Whenever the court orders the transfer of legal custody to a noncustodial parent, a relative, or a person with a significant relationship with the child, such orders shall be supported by findings regarding the suitability of that person to assume legal custody of the child and the safety and appropriateness of the placement.
  6. Conditions.  Conditions shall include protective supervision with the Department if such a condition is not in place under the terms of an existing temporary care or conditional custody order. Protective supervision shall remain in effect for the duration of the order to allow the Department to take reasonable steps to monitor compliance with the terms of the conditional custody order.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2013, No. 92 (Adj. Sess.), § 301, eff. Feb. 14, 2014; 2015, No. 170 (Adj. Sess.), § 6, eff. Sept. 1, 2016.

History

2021 In subdiv. (a)(7), in the third sentence, substituted "subsection” for "subdivision” preceding "5320a(b)” to conform reference to V.S.A. style.

Amendments--2015 (Adj. Sess.). Subsec. (a): Rewrote subdivs. (1), (2), and the last sentence in subdiv. (7).

Subsec. (f): Added.

Amendments--2013 (Adj. Sess.). Subsec. (c): "Agencies of Human Services and of Education" for "agency of human services, the department of education".

ANNOTATIONS

Analysis

1. Termination of parental rights.

In terminating a father's parental rights, the trial court had properly found the requisite change of circumstances for modifying its earlier order denying the State's termination petition. The evidence here amply supported the finding that the father's ability to care for the child had stagnated; the fact that the child had been receiving love and stability from his stepmother during the same period did not mean that the father's inaction in obtaining counseling had not negatively affected the child. In re J.G., 188 Vt. 562, 2 A.3d 817 (mem.) (2010).

2. Custody.

Even if it were reasonable to assume that the Legislature intended the courts in post-disposition proceedings to utilize the options set forth in the statute governing children-in-need-of-care-and-supervision disposition orders, nothing in the statutory language suggests that the list of custodial options is exclusive. On the contrary, the statute provides that the court shall make such orders relating to legal custody as are in the best interests of the child, "including" the seven enumerated. In re J.G., 188 Vt. 562, 2 A.3d 817 (mem.) (2010).

Statute governing children-in-need-of-care-and-supervision disposition orders may address the typical case where a termination of parental rights leaves no custodial option other than the Department for Children and Families, but this is hardly the only possible scenario. As the Legislature's intentional use of the term "including" implies, therefore, the more reasoned and likely purpose of the provision allowing an "order terminating all rights and responsibilities of a parent by transferring legal custody and residual parental rights to the commissioner without limitation as to adoption" was to provide one termination option, but not the only one. In re J.G., 188 Vt. 562, 2 A.3d 817 (mem.) (2010).

Trial court did not lack authority to terminate a father's parental rights and award custody to a stepmother instead of to the Department for Children and Families. Even if the Legislature intended courts in post-disposition proceedings to use the options in the statute governing children-in-need-of-care-and-supervision disposition orders, nothing suggested that the list of custodial options was exclusive. In re J.G., 188 Vt. 562, 2 A.3d 817 (mem.) (2010).

3. Appeal.

Because a motion by the Department for Children and Families (DCF) to retransfer custody to DCF was essentially a motion to modify the disposition plan, the trial court's order granting the motion, though erroneously styled as a temporary care order, was procedurally an order modifying the custodial aspects of the court's prior disposition order and as such was an appealable final order. In re I.B., 202 Vt. 311, 149 A.3d 160 (2016).

Because a disposition order in a child-in-need-of-care-or-supervision case is a "final order," and thus meets the standard for an appealable order, the parties can appeal a disposition order whether original or as a result of modification. Thus, because the order that a mother appealed from was an amended disposition order, the court had jurisdiction over the appeal. In re R.M., 194 Vt. 431, 82 A.3d 565 (2013).

4. Evidence.

At the disposition stage of a child-in-need-of-care-or-supervision case, the trial court did not err in not allowing the mother to present evidence concerning the grandmother's suitability as a placement, as it had the discretion to decide whether to allow parents to put on new evidence regarding the suitability of a third-party caretaker and had recently taken extensive evidence on the grandmother's suitability. In re A.M., 200 Vt. 189, 130 A.3d 211 (2015).

5. Costs of parent-child contact.

In a child-in-need-of-care-or-supervision (CHINS) proceeding, the Family Division erred in directing the mother to pay 75 percent of the costs for the child's visits to Vermont, as the CHINS statute did not explicitly authorize the Family Division to allocate the costs of unsupervised parent-child contact between a custodial parent and a noncustodial parent or to allocate travel costs when the Family Division transferred custody to a noncustodial parent at disposition; furthermore, the authority was not inherent in the overall statutory scheme for CHINS proceedings. In re A.M., 211 Vt. 198, 222 A.3d 489 (2019).

§ 5319. Parent-child contact and contact with siblings and relatives.

  1. The court shall order parent-child contact unless the court finds that it is necessary to deny parent-child contact because the protection of the physical safety or emotional well-being of the child so requires. Except for good cause shown, the order shall be consistent with any existing parent-child contact order.
  2. The court may determine the reasonable frequency and duration of parent-child contact and may set such conditions for parent-child contact as are in the child's best interests, including whether parent-child contact should be unsupervised or supervised. The court may allocate the costs of supervised visitation.
  3. Parent-child contact may be modified by stipulation or upon motion of a party or upon the court's own motion pursuant to section 5113 of this title.
  4. The court may terminate a parent-child contact order in a juvenile proceeding upon a finding that:
    1. a parent has without good cause failed to maintain a regular schedule of contact with the child and that the parent's failure to exercise regular contact has had a detrimental impact on the emotional well-being of the child; or
    2. continued parent-child contact in accordance with the terms of the prior order will have a detrimental impact on the physical or emotional well-being of the child.
  5. Upon motion of the child's attorney, the court may also order contact between the child and the child's siblings, an adult relative with whom the child has a significant relationship, or an adult friend with whom the child has a significant relationship.
  6. Failure to provide parent-child contact due to the child's illness or other good cause shall not constitute grounds for a contempt or enforcement proceeding against the Department.

    Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

ANNOTATIONS

Analysis

1. Suspension of contact.

Statutory scheme governing permanency proceedings expressly authorizes the suspension of parent-child contact while the child is in Department for Children and Families custody if necessary for the protection of the physical safety or emotional well-being of the child. This provision clearly contemplates a temporary deprivation of rights, and therefore may be satisfied by a preponderance of the evidence showing that a suspension of contact is necessary for the protection of the child's physical or emotional safety. In re B.C., 194 Vt. 391, 81 A.3d 1152 (2013).

Although in retrospect, the suspension of father's contact with the child led to a permanent termination of his parental rights, at the time the suspension was temporary and did not purport to permanently cut off his parental rights; accordingly, no finding of unfitness was required at that time, and there was no deprivation of father's fundamental rights. Moreover, although the trial court noted the father's extended lack of contact with the child, it did not give this factor substantial weight in its decision terminating his parental rights. In re B.C., 194 Vt. 391, 81 A.3d 1152 (2013).

2. Grandparents.

When the paternal grandmother sought to appear in the juvenile proceeding through an attorney after the termination petition was filed and requested visitation, the trial court properly declined to enter her as a party and denied the request for visitation. Grandparents who are not guardians or custodians are not parties in juvenile proceedings; moreover, there is no statutory right to grandparent visitation for children who are the subject of juvenile proceedings. In re C.B., - Vt. - , 249 A.3d 1281 (Sept. 25, 2020).

§ 5320. Postdisposition review hearing.

The court shall hold a review hearing within 60 days of the date of the disposition order for the purpose of monitoring progress under the disposition case plan and reviewing parent-child contact. Notice of the review shall be provided to all parties. A foster parent, preadoptive parent, relative caregiver, or any custodian of the child shall be provided with notice of any post disposition review hearings and an opportunity to be heard at the hearings. Nothing in this section shall be construed as affording such person party status in the proceeding. This section shall not apply to cases where full custody has been returned to one or both parents unconditionally at disposition, or cases where the court has created a permanent guardianship at disposition. The Department shall, and any other party or caregiver may, prepare a written report to the court regarding progress under the plan of services specified in the disposition case plan.

Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009; amended 2015, No. 170 (Adj. Sess.), § 7, eff. Sept. 1, 2016.

History

Amendments--2015 (Adj. Sess.). Section amended generally.

§ 5320a. Duration of conditional custody orders postdisposition.

  1. Conditional custody orders to parents.  Whenever the court issues a conditional custody order transferring custody to a parent either at or following disposition, the presumptive duration of the order shall be no more than six months from the date of the disposition order or the conditional custody order, whichever occurs later, unless otherwise extended by the court after hearing. At least 14 days prior to the termination of the order, any party may file a request to extend the order pursuant to subsection 5113(b) of this title. Upon such motion, the court may extend the order for an additional period of time not to exceed six months. Prior to vacating the conditional custody order, the court may schedule a hearing on its own motion to review the case prior to discharging the conditions. If a motion to extend is not filed, the court shall issue an order vacating the conditions and transferring full custody to the parent without conditions.
  2. Custody orders to nonparents.
    1. When the court at disposition issues an order continuing or transferring legal custody with a nonparent pursuant to subdivision 5318(a)(2) or (a)(7) of this title, the court shall set the matter for a hearing six months from the date of disposition or custody order, whichever occurs later. At the hearing, the court shall determine whether it is in the best interests of the child to:
      1. transfer either full or conditional custody of the child to a parent;
      2. establish a permanent guardianship pursuant to 14 V.S.A. § 2664 with the nonparent who has had custody of the child as the guardian; or
      3. terminate residual parental rights and release the child for adoption.
    2. If, after hearing, the court determines that reasonable progress has been made toward reunification and that reunification is in the best interests of the child but will require additional time, the court may extend the current order for a period not to exceed six months and set the matter for further hearing.

      Added 2015, No. 170 (Adj. Sess.), § 11, eff. Sept. 1, 2016.

§ 5321. Permanency hearing.

  1. Purpose.  Unless otherwise specified therein, an order under the authority of this chapter transferring legal custody or residual parental rights and responsibilities of a child to the Department pursuant to subdivision 5318(a)(4) or (5) of this title shall be for an indeterminate period and shall be subject to periodic review at a permanency hearing. At the permanency hearing, the court shall determine the permanency goal for the child and an estimated time for achieving that goal. The goal shall specify when:
    1. legal custody of the child will be transferred to the parent, guardian, or custodian;
    2. the child will be released for adoption;
    3. a permanent guardianship will be established for the child;
    4. a legal guardianship will be established for the child pursuant to an order under 14 V.S.A. chapter 111; or
    5. the child will remain in the same living arrangement or be placed in another planned permanent living arrangement because the Commissioner has demonstrated to the satisfaction of the court a compelling reason that it is not in the child's best interests to:
      1. return home;
      2. have residual parental rights terminated and be released for adoption; or
      3. be placed with a fit and willing relative or legal guardian.
  2. The court shall adopt a case plan designed to achieve the permanency goal. At the permanency review, the court shall review the permanency plan and determine whether the plan advances the permanency goal recommended by the Department. The court may accept or reject the plan, but may not designate a particular placement for a child in the Department's legal custody.
  3. A permanency review hearing shall be held no less than every 12 months with the first hearing to be held 12 months after the date the legal custody of the child was transferred, subject to the following exceptions:
    1. If the child was three years of age or younger at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every three months.
    2. If the child is between the ages of three and six at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every six months.
  4. If the court shortens the time for the permanency review hearing for a younger sibling, that shortened review interval shall be applied to all siblings in the family who are in the legal custody of the Department.
    1. The Department shall file with the court a notice of permanency review together with a case plan and recommendation for a permanency goal. The Department shall provide notice to the State's Attorney having jurisdiction and to all parties to the proceeding in accordance with the rules for family proceedings. The court shall hold a permanency review hearing within 30 days of the filing of notice by the Department. Failure to give such notice or to review an order shall not terminate the original order or limit the court's jurisdiction. (e) (1)  The Department shall file with the court a notice of permanency review together with a case plan and recommendation for a permanency goal. The Department shall provide notice to the State's Attorney having jurisdiction and to all parties to the proceeding in accordance with the rules for family proceedings. The court shall hold a permanency review hearing within 30 days of the filing of notice by the Department. Failure to give such notice or to review an order shall not terminate the original order or limit the court's jurisdiction.
    2. A foster parent, preadoptive parent, or relative caregiver for the child shall be provided notice of and an opportunity to be heard at any permanency hearing held with respect to the child. Nothing in this subsection shall be construed as affording such person party status in the proceeding.
  5. All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value even though not competent at an adjudication hearing.
  6. The permanency hearing may be held by an administrative body appointed or approved by the court. The administrative body may consist of one but not more than three persons. No person employed by the Department shall be a member of the administrative body. In the event that the administrative body determines that the existing order should be altered, it shall submit its recommendation to the court for its consideration. In the event that the administrative body determines that the existing order should not be altered, its determination shall be binding unless any party requests review by the court within 10 days of receipt of the determination. A copy of the determination shall be sent to each party and to the court. The court, on its own motion or on the request of any party, shall conduct a review de novo within 30 days of receipt of such request.
  7. Upon the filing of a petition for a finding of reasonable efforts and a report or affidavit by the Department for Children and Families with notice to all parties, the court shall hold a hearing within 30 days of the filing of the petition to determine, by a preponderance of the evidence, whether the Department for Children and Families has made reasonable efforts to finalize the permanency plan for the child that is in effect at the time of the hearing. The hearing may be consolidated with or separate from a permanency hearing. Reasonable efforts to finalize a permanency plan may consist of:
    1. reasonable efforts to reunify the child and family following the child's removal from the home, where the permanency plan for the child is reunification; or
    2. reasonable efforts to arrange and finalize an alternate permanent living arrangement for the child, in cases where the permanency plan for the child does not include reunification.

      Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

ANNOTATIONS

Analysis

1. Generally.

In a child-in-need-of-care-or-supervision case, the trial court did not err in finding six months to be a reasonable period of time to achieve the permanency goal of reunification, given the relatively slow pace of the mother's progress and the children's need for permanency. The time period was simply an estimate, and if the State sought to terminate the mother's rights, the mother was not foreclosed from challenging the time-period as unreasonable in hindsight. In re R.M., 194 Vt. 431, 82 A.3d 565 (2013).

In a termination of parental rights case, the level of assistance provided to parents is relevant in determining whether a parent is unlikely to be able to resume parental duties within a reasonable period of time. But whether the Department for Children and Families made reasonable efforts to achieve permanency is a separate question from whether termination is in the child's best interests, and the former is not a prerequisite to the latter. In re C.P., 193 Vt. 29, 71 A.3d 1142 (2012).

2. Permanency goal.

Court does not read the various avenues for review of the circumstances and expectations of the parents and children to create independent opportunities to modify a disposition order in a child-in-need-of-care-or-supervision case without a showing of changed circumstances. Instead they reflect that circumstances must change within relatively short periods of time to reflect the goals of the case plan and achieve permanency for the children; thus, one result of a permanency hearing is to produce an estimate of when the permanency goal will be achieved. In re R.M., 194 Vt. 431, 82 A.3d 565 (2013).

3. Reasonable efforts.

In a termination of parental rights (TPR) case, the father's challenge to the trial court's "reasonable efforts" determination was moot, because having found that the trial court properly granted the TPR petition, there was no further relief the court could grant to the father by reviewing the standalone reasonable-efforts determination. In re D.F., 209 Vt. 272, 204 A.3d 641 (2018).

§ 5322. Placement of a child in a facility used for treatment of delinquent children.

A child found by the court to be a child in need of care and supervision shall not be placed in or transferred to an institution used solely for the treatment or rehabilitation of delinquent children unless the child has been charged with or adjudicated as having committed a delinquent act.

Added 2007, No. 185 (Adj. Sess.), § 3, eff. Jan. 1, 2009.

CHAPTER 55. JUDICIAL PROCEEDINGS

Sec.

Annotations From Former Chapter 55

1. Constitutional requirements.

Although juvenile proceedings are summary, they must not be so summary that they fail to measure up to the minimum essentials of substantive due process. In re Lee, 126 Vt. 156, 224 A.2d 917 (1966).

A juvenile proceeding must not be so summary that it fails to measure up to the minimum essentials of substantive due process. In re Rich, 125 Vt. 373, 216 A.2d 266 (1965).

A juvenile proceeding may properly dispense with formal constitutional requirements relating to criminal proceedings, the justification being based on the conception of the proceeding as noncriminal and as being an exercise of the parens patriae authority of the State, making it essentially a custody proceeding. In re Rich, 125 Vt. 373, 216 A.2d 266 (1965).

2. Construction.

The goal of furthering the best interests of the children whose future is at stake underlies the governing juvenile proceedings statutory scheme. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

This chapter was enacted in a valid exercise of the police power, is not penal, but protective, and is to be liberally construed. In re Hook, 95 Vt. 497, 115 A. 730 (1922).

3. Construction with other laws.

The procedural safeguards attendant upon any proceeding under this chapter, including the right to appointment of a guardian ad litem if the juvenile has no parent or guardian appearing for him, or if their interest conflicts with the juveniles', or if the court believes it is required in the interests of the child, apply to a hearing under that section of Vermont's statute adopting the Interstate Compact on the Placement of Children which allows an adjudicated delinquent to be placed in an out-of-state institution upon hearing and a finding that equivalent facilities are not available in Vermont and institutional care in the other state is in the best interests of the juvenile and will not produce undue hardship. In re J.S., 139 Vt. 6, 420 A.2d 870 (1980).

4. Nature of proceedings.

Proceedings under this chapter are protective, not penal. In re R.S., 143 Vt. 565, 469 A.2d 751 (1983).

Child neglect proceedings are concerned entirely with the welfare of the child. In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972).

Proceedings as to dependent and neglected children are protective, not penal, with no legislative purpose to condemn the child or its parents for the difficulties of the situation. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

Juvenile proceedings in Vermont are protective proceedings concerned entirely with the welfare of the child, and are not punitive; the inquiry relates to proper custody for the child, not his guilt or innocence as a criminal offender. In re Rich, 125 Vt. 373, 216 A.2d 266 (1965).

5. Authority of State.

State, pursuant to long-recognized doctrine of parens patriae, is empowered to enact laws for the protection, care, custody, and support of children within its jurisdictional limits. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

Power allocated to state to enact laws for protection, care, custody, and support of children is awesome and is necessarily subject to certain restraints imposed by Legislature. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

When the State is regulating the area of child neglect, it acts as parens patriae to the child. In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972).

6. Intervention by State.

In determining that a child is endangered and that State intervention is necessary, the court is to act with great care in deciding what type of intervention is appropriate.

7. Minors subject to jurisdiction.

Under this chapter, persons who are under 18 and have had a petition of neglect or unmanageability brought, or persons from 10 to 16 who are declared by the court to be delinquent, are minors subject to the jurisdiction of the juvenile court; furthermore, persons from 16 to 18 who are charged as criminal defendants can be transferred to juvenile court jurisdiction and once jurisdiction is in the court, it remains there until a child turns 21 years of age. 1968-70 Op. Atty. Gen. 182.

8. Confidentiality.

The confidentiality provisions of this chapter do not by their terms restrict their application to delinquency proceedings. In re J.R., 146 Vt. 185, 499 A.2d 1155 (1985).

9. Evidence.

Where there was no statutory authorization for court to order a psychiatric examination of the mother in proceeding upon petition alleging her children were in need of care and supervision, the psychiatrist's report and testimony should have been excluded from evidence, and given the insufficiency of the State's case without that evidence, the decision that the children were without parental care necessary for their emotional and mental well-being and that they should be transferred to the State, with residual rights remaining in the mother, must be reversed. In re T.L.S., 139 Vt. 197, 425 A.2d 96 (1980).

Hearsay, opinion, gossip, bias, prejudice, trends of hostile neighborhood feeling, the hopes and fears of social workers, are all sources of error and have no more place in juvenile courts that in any other court. In re Lee, 126 Vt. 156, 224 A.2d 917 (1966).

Cited. In re S.R., 157 Vt. 417, 599 A.2d 364 (1991); In re C.L., 143 Vt. 554, 468 A.2d 563 (1983).

History

Law review commentaries

Law review. Judicial discretion in cases involving children in need of care or supervision, see 8 Vt. L. Rev. 119 (1983).

For note, "Daring to Care While Tending to Justice: An Argument for the Reform of Parens Patriae and Vermont's Juvenile Justice Code," see 17 Vt. L. Rev. 595 (1993).

§§ 5501-5541. Repealed. 2007, No. 185 (Adj. Sess.), § 13, eff. Jan. 1, 2009.

History

Former §§ 5501-5541. Former § 5501, relating to purposes, was derived from 1967, No. 304 (Adj. Sess.), § 1 and amended by amended 1997, No. 139 (Adj. Sess.), § 1.

Former § 5502, relating to definitions and provisions of general application, was derived from 1967, No. 304 (Adj. Sess.), § 2 and amended by 1969, No. 16 , § 9; 1969, No. 289 (Adj. Sess.), § 2; 1971, No. 90 , § 16; 1973, No. 152 (Adj. Sess.), § 9; No. 246 (Adj. Sess.), §§ 2, 3, 21; 1981, No. 1 (Sp. Sess.), § 1; 1991, No. 125 , (Adj. Sess.), § 1; 1993, No. 178 (Adj. Sess.), § 1; No. 234 (Adj. Sess.), § 20; 1995, No. 178 (Adj. Sess.), § 302; 1997, No. 116 (Adj. Sess.), § 2; and 2003, No. 73 (Adj. Sess.), § 2.

Former § 5503, relating to jurisdiction, was derived from 1967, No. 304 (Adj. Sess.), § 3 and amended by 1981, No. 1 (Sp. Sess.), § 2 and 1989, No. 220 (Adj. Sess.), § 27.

Former § 5504, relating to retention of jurisdiction, was derived from 1967, No. 304 (Adj. Sess.), § 4; and amended by 1971, No. 90 , § 17; 1981, No. 1 (Sp. Sess.), § 3; 1995, No. 178 (Adj. Sess.), § 303; and 1997, No. 116 (Adj. Sess.), § 3.

Former § 5505, relating to transfer from other courts, was derived from 1967, No. 304 (Adj. Sess.), § 5; and amended by 1981, No. 1 (Sp. Sess.), § 4; 1997, No. 116 (Adj. Sess.), § 4; 1999, No. 137 (Adj. Sess.), § 1; 2001, No. 142 (Adj. Sess.), § 118d; and 2003, No. 145 (Adj. Sess.), § 4.

Former § 5506, relating to transfer from juvenile court, was derived from 1981, No. 1 (Sp. Sess.), § 5 and amended by 1997, No. 116 (Adj. Sess.), § 6.

Former § 5507, relating to transfer to another juvenile court within the State, was derived from 1967, No. 304 (Adj. Sess.), § 6 and amended by 1973, No. 246 (Adj. Sess.), § 4.

Former § 5508, relating to venue, was derived from 1967, No. 304 (Adj. Sess.), § 7 and amended by 1973, No. 246 (Adj. Sess.), § 5.

Former § 5509, relating to powers and duties of officers, was derived from 1967, No. 304 (Adj. Sess.), § 8 and amended by 1973, No. 152 (Adj. Sess.), § 9 and No. 246 (Adj. Sess.), § 6.

Former § 5510, relating to taking into custody, was derived from 1967, No. 304 (Adj. Sess.), § 9 and amended by 2001, No. 41 , § 5.

Former § 5511, relating to release, shelter, or delivery to court, was derived from 1967, No. 304 (Adj. Sess.), § 10 and amended by 1981, No. 1 (Sp. Sess.), § 6; 1985, No. 141 (Adj. Sess.), § 1 and 2001, No. 41 , § 6.

Former § 5512, relating to designated shelter, was derived from 1985, No. 141 (Adj. Sess.), § 2.

Former § 5513, relating to criteria for detaining children; order of detention, was derived from 1967, No. 304 (Adj. Sess.), § 11 and amended by 1973, No. 152 (Adj. Sess.), § 9; No. 246 (Adj. Sess.), § 7 and 2005, No. 21 , § 1.

Former § 5514, relating to detention; temporary care pending hearing, was derived from 1967, No. 304 (Adj. Sess.), § 12 and amended by 1973, No. 152 (Adj. Sess.), § 9; No. 246 (Adj. Sess.), § 8; 1985, No. 141 (Adj. Sess.), § 3; 1987, No. 182 (Adj. Sess.), § 3 and 2005, No. 198 (Adj. Sess.).

Former § 5515, relating to release from temporary care; detention hearing, was derived from 1967, No. 304 (Adj. Sess.), § 13 and amended by 2005, No. 21 , § 2 and 2005, No. 198 (Adj. Sess.), §§ 6, 7.

Former § 5516, relating to commencement of proceedings, was derived from 1967, No. 304 (Adj. Sess.), § 14 and amended by 1981, No. 1 (Sp. Sess.), § 7.

Former § 5517, relating to filing of a petition, was derived from 1967, No. 304 (Adj. Sess.), § 15 and amended by 1973, No. 152 (Adj. Sess.), § 9 No. 246 (Adj. Sess.), § 9; 1995, No. 178 (Adj. Sess.), §§ 301, 304 and 2003, No. 122 (Adj. Sess.), § 105a.

Former § 5518, relating to petition, contents, was derived from 1967, No. 304 (Adj. Sess.), § 16 and amended by 2001, No. 142 (Adj. Sess.), § 118e.

Former § 5519, relating to date of hearing on the petition; summons, was derived from 1967, No. 304 (Adj. Sess.), § 17 and amended by 1973, No. 152 (Adj. Sess.), § 9 and No. 246 (Adj. Sess.), § 10.

Former § 5519a, relating to notice of hearing; noncustodial parents, was derived from 2001, No. 142 (Adj. Sess.), § 118f.

Former § 5520, relating to service of summons, was derived from 1967, No. 304 (Adj. Sess.), § 18.

Former § 5521, relating to failure to answer summons; warrants, was derived from 1967, No. 304 (Adj. Sess.), § 19 and amended by 1973, No. 246 (Adj. Sess.), § 11.

Former § 5522, relating to subpoena, was derived from 1967, No. 304 (Adj. Sess.), § 20.

Former § 5523, relating to conduct of hearings, was derived from 1967, No. 304 (Adj. Sess.), § 21 and amended by 1995, No. 147 (Adj. Sess.), § 3 and 2003, No. 73 (Adj. Sess.), § 3.

Former § 5524, relating to juvenile proceedings, was derived from 1967, No. 304 (Adj. Sess.), § 22.

Former § 5525, relating to guardian ad litem, counsel, was derived from 1967, No. 304 (Adj. Sess.), § 23.

Former § 5526, relating to hearing; findings; dismissal, was derived from 1967, No. 304 (Adj. Sess.), § 24 and amended 1973, No. 246 (Adj. Sess), § 12.

Former § 5527, relating to continuation of hearing; disposition report, was derived from 1967, No. 304 (Adj. Sess.), § 25 and amended by 1969, No. 289 (Adj. Sess.), § 3; 1973, No. 152 (Adj. Sess.), § 9; No. 246 (Adj. Sess.), § 13 and 1995, No. 147 (Adj. Sess.), § 4.

Former § 5528, relating to disposition of child in need of care or supervision, was derived from 1967, No. 304 (Adj. Sess.), § 26 and amended by 1971, No. 246 (Adj. Sess.); 1973, No. 152 (Adj. Sess.), § 9; No. 246 (Adj. Sess.), § 14; 1991, No. 169 (Adj. Sess.), § 2; and 1995, No. 147 (Adj. Sess.), § 5.

Former § 5529, relating to disposition of delinquent child, was derived from 1967, No. 304 (Adj. Sess.), § 27 and amended by 1973, No. 246 (Adj. Sess.), § 15: 1985, No. 10 ; and 1991, No. 169 (Adj. Sess.), § 3.

Former § 5529a, relating to victim's statement at disposition proceeding; victim notification, was derived from 1995, No. 170 (Adj. Sess.), § 17 and amended by 2003, No. 73 (Adj. Sess.), § 4.

Former § 5529b, relating to disposition of youthful offenders, was derived from 1997, No. 116 (Adj. Sess.), § 5 and amended by 2001, No. 142 (Adj. Sess.), § 118g.

Former § 5529c, relating to modification or revocation of disposition, was derived from 1997, No. 116 (Adj. Sess.), § 5.

Former § 5529d, relating to review prior to the age of 18, was derived from 1997, No. 116 (Adj. Sess.), § 5 and amended by 2001, No. 63 , § 280a.

Former § 5529e, relating to termination or continuance of disposition, was derived from 1997, No. 116 (Adj. Sess.), § 5 and amended by 1999, No. 137 (Adj. Sess.), § 2.

Former § 5529f, relating to rights of victims in youthful offender proceedings, was derived from 1997, No. 116 (Adj. Sess.), § 5.

Former § 5529g, relating to rights of victims in delinquency proceedings involving a listed crime, was derived from 2003, No. 73 (Adj. Sess.), § 5.

Former § 5530, relating to disposition of minors adjudicated as adult offenders; separation of persons under 18 years from adults, was derived from 1981, No. 1 (Sp. Sess.), § 8 and amended by 1987, No. 182 (Adj. Sess.), § 4; 1991, No. 39 ; and 2003, No. 145 (Adj. Sess.), § 2.

Former § 5531, relating to permanency hearing, was derived from 1967, No. 304 , (Adj. Sess.), § 28 and amended by 1969, No. 289 (Adj. Sess.), § 4; 1973, No. 57 ; 1981, No. 1 (Sp. Sess.), § 9; 1981, No. 243 (Adj. Sess.), § 1; 1991, No. 169 (Adj. Sess.), § 4; 1995, No. 145 (Adj. Sess.), § 6; 1997, No. 139 (Adj. Sess.), § 2; and 2005, No. 21 , § 3.

Former § 5532, relating to modification or vacation of orders, was derived from 1967, No. 304 (Adj. Sess.), § 29 and amended by 1969, No. 289 (Adj. Sess.), § 5; 1973, No. 246 (Adj. Sess.), § 16; 1981, No. 1 (Sp. Sess.), § 10.

Former § 5533, relating to costs and expenses for care of child, was derived from 1967, No. 304 (Adj. Sess.), § 30 and amended by 1973, No. 152 (Adj. Sess.), § 9; No. 246 (Adj. Sess.), § 17; and 1995, No. 63 , § 139d.

Former § 5534, relating to protective orders, was derived from 1967, No. 304 (Adj. Sess.), § 31 and amended by 1973, No. 246 (Adj. Sess.), § 18.

Former § 5535, relating to order of adjudication, noncriminal, was derived from 1967, No. 304 (Adj. Sess.), § 32 and amended by 1973, No. 246 (Adj. Sess.), § 19.

Former § 5536, relating to juvenile court records, was derived from 1967, No. 304 (Adj. Sess.), § 33 and amended by 1969, No. 289 (Adj. Sess.), § 6; 1981, No. 1 (Sp. Sess.), § 11; and 1997, No. 153 (Adj. Sess.), § 6.

Former § 5536a, relating to limited exception to confidentiality of records of juveniles maintained by the family court, was derived from 1997, No. 153 (Adj. Sess.), § 7 and amended by 1999, No. 4 , § 6.

Former § 5537, relating to fingerprints, photographs, was derived from 1967, No. 304 (Adj. Sess.) § 34 and amended by 1971, No. 90 , § 18; 1981, No. 1 (Sp. Sess.), § 12.

Former § 5538, relating to sealing of records, was derived from 1967, No. 304 (Adj. Sess.), § 35 and amended by 1969, No. 16 , § 10; 1971, No. 90 , § 19; 1973, No. 246 (Adj. Sess.), § 20; 1991, No. 169 (Adj. Sess.), § 1; and 2005, No. 198 (Adj. Sess.), § 2.

Former § 5539, relating to contempt power, was derived from 1967, No. 304 (Adj. Sess.), § 36.

Former § 5540, relating to best interests of the child, was derived from 1975, No. 233 (Adj. Sess.), § 2 and amended by 1981, No. 243 (Adj. Sess.), § 2.

Former § 5541, relating to transportation of a child, was derived from 2005, No. 180 (Adj. Sess.), § 1.

Annotations From Former § 5501

1. Constitutional requirements.

The freedom of children and parents to relate to one another in the context of the family, free of governmental interference, is a basic liberty long established in constitutional law, thus in order to insure that this fundamental liberty will not be unduly tampered with the Legislature has expressly provide that a child be separated from its parents only when necessary for his welfare or in the interests of public safety. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

2. Welfare of child.

When a juvenile defendant charged with the second-degree murder of a man who came to his home to have sex with his mentally ill mother sought transfer of his case to juvenile court, his case had to be considered in the context of defendant's increasing frustration at his inability to control the escalating events at home - events of the most humiliating and degrading nature for a child. That these events might have combined to overwhelm his youthful judgment was to inform the district court's discretion in light of the special status accorded juvenile cases by the Legislature. Chase v. State, 184 Vt. 430, 966 A.2d 139 (2008).

Ability of the public to follow a case through the judicial system was not a proper consideration in denying defendant's motion to transfer his case to juvenile court, and was not entitled to independent weight as a matter of law. A primary purpose of the juvenile court system is to protect juveniles from the taint of criminality that inevitably results from the publicity and permanence of convictions in the district court; the other provisions of the chapter regarding judicial proceedings in juvenile cases, including the discretionary transfer provisions, are to be construed to give effect to the purposes announced for the chapter. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

Primary concern of court construing this section must be with the welfare of the child. In re R.B., 152 Vt. 415, 566 A.2d 1310 (1989), cert. denied, Appleby v. Young, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990).

Laws adopted by state for protection, care, custody, and support of children are designed to establish protective procedures, primarily concerned with welfare of the child. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

Juvenile proceedings in Vermont are protective proceedings entirely concerned with the welfare of the child, and are not punitive; the inquiry relates to proper custody for the child, not his guilt or innocence as a criminal offender. In re Rich, 125 Vt. 373, 216 A.2d 266 (1965).

3. Compelling state interest.

The purpose sought to be effected by this chapter, as stated in this section, provide the compelling state interest required before the State may involve itself with the problem of child neglect. In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972).

4. Compelling parental rights.

Juvenile court is not free to weigh and compare the merits of various possible solutions free of any regard for compelling parental rights. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977); In re H.A., 148 Vt. 106, 528 A.2d 756 (1987).

5. Separation of child from parents.

Provision of this section that a child be separated from its parents only when necessary for his welfare or in the interests of public safety does not allow for intervention simply because a child might be better off somewhere else. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

Where child who had been abused by mother was in need of care or supervision, and father, despite existence of questions concerning his ability to assume active, responsible parental role, stood willing and able, with support of his parents, to provide child with a family environment, disposition order transferring custody to the Department would be vacated in absence of any convincing proof that father was an unfit parent, demonstrably incapable of providing appropriate home for child. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

6. Termination of parental rights.

Parental rights cannot be terminated simply because a child may be better off in another home. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

There is a legislative policy of permitting adoption without parental consent only when the best interests of the child cannot be achieved by temporary removal and placement outside the home, and that total termination of parental rights will not be ordered in the first instance if there is a reasonable possibility that the situation can be remedied and the family reunited within a reasonable time. In re D.R., 136 Vt. 478, 392 A.2d 951 (1978).

Though juvenile court has the power to sever all parental rights upon a finding that a minor is in need of care or supervision, such power should be used with extreme care and only as a last resort in carrying out the legislative purpose of providing for the care, protection, and wholesome development of children, and this purpose is to be achieved, when possible, in a family environment, with separation of child and parents only when necessary for the child's welfare or in the interests of public safety. In re D.R., 136 Vt. 478, 392 A.2d 951 (1978).

Order completely severing all parental rights and allowing adoption of six-year-old girl would be vacated where it was entered after initial finding of inability of parents to properly care for the child without leaving open the possibility in the future that the situation could be remedied and the family reunited. In re D.R., 136 Vt. 478, 392 A.2d 951 (1978).

7. Rehabilitation.

State owed plaintiffs no duty of care based on failure to control actions of juvenile who was in State custody but who had been temporarily placed with his mother during weekend of assault, since imposing negligence against State would erode public policy of rehabilitation of juveniles through reunification with their families and the public. Sorge v. State, 171 Vt. 171, 762 A.2d 816 (2000).

8. Placement of child.

In a termination of parental rights case where the trial court denied the parents' request to transfer their rights to the child's aunt and uncle, there was ample current evidence to support the trial court's findings. While their exact placement recommendations might not have been current, both experts provided credible evidence to support the findings that the child had a strong bond with her foster mother and that a transition to her aunt and uncle would take time and would require the cooperation of both households; furthermore, the trial court also heard testimony from people directly involved in the child's care, including her therapist, day-care provider, foster parent, aunt, and caseworkers, who provided current information about the child and her relationships. In re W.L., 185 Vt. 641, 974 A.2d 602 (mem.) (2009).

In a termination of parental rights case where the trial court denied the parents' request to transfer their rights to the child's aunt and uncle, the trial court properly held that a shared custody arrangement between the child's foster mother and the aunt and uncle was not in the child's best interests. The trial court primarily rejected the arrangement because it would delay permanency, and it also credibly found that a shared arrangement was not a possibility given the inability of the foster mother and the aunt and uncle to work together. In re W.L., 185 Vt. 641, 974 A.2d 602 (mem.) (2009).

Cited. In re G.F., 142 Vt. 273, 455 A.2d 805 (1982); In re Y.B., 143 Vt. 344, 466 A.2d 1167 (1983); In re T.S., 144 Vt. 592, 481 A.2d 21 (1984); In re T.L.S., 144 Vt. 536, 481 A.2d 1037 (1984); In re L.S., 147 Vt. 36, 509 A.2d 1017 (1986); In re B.J C., 149 Vt. 196, 540 A.2d 1047 (1988); In re L.T., 149 Vt. 473, 545 A.2d 522 (1988); In re C.L., 151 Vt. 480, 563 A.2d 241 (1989); In re J.H., 156 Vt. 66, 587 A.2d 1009 (1991); In re P.M., 156 Vt. 303, 592 A.2d 862 (1991); In re Selivonik, 164 Vt. 383, 670 A.2d 831 (1995); In re J.M., 178 Vt. 591, 878 A.2d 293 (mem.) (June 9, 2005); In re J.F., 180 Vt. 583, 904 A.2d 1209 (mem.) (June 5, 2006).

Law review commentaries

Law review. For note, "Interstate Testimony By Child Protective Agency Workers in the Child Custody Context," see 21 Vt. L. Rev. 633 (1996).

Annotations From Former § 5502

1. Constitutionality.

Protection and interest of the public was a rational basis, for purposes of due process analysis, of statute vesting original jurisdiction in the criminal court over certain enumerated serious offenses committed by persons 14 to 16 years of age, and for mandating that, absent mitigating circumstances such as would justify transfer to juvenile court, such persons be tried as adults. State v. Buelow, 155 Vt. 537, 587 A.2d 948 (1990).

Where determination of district court that child was in need of care and supervision was based on a finding that the mother was not caring for or supervising her child, and not upon the mother's having travelled out of the State, the court's finding that the child was in need of care and supervision and transfer of custody of the child to the State based upon that finding did not violate the mother's right to travel under the United States and Vermont Constitutions. In re S.A.M., 140 Vt. 194, 436 A.2d 736 (1981).

Statutory definition of neglected child is detailed enough to govern the achievement of the purposes the statute seeks to fulfill, establishes reasonable standards, and is not so broadly termed as to be unconstitutional. In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972).

2. Delinquent act.

Because he was 14 years old at time of alleged offense, juvenile was himself a person within protection of statutory rape statute and thus could not be adjudicated a delinquent child based on his alleged violation of that statute. In re G.T., 170 Vt. 507, 758 A.2d 301 (2000).

In making a determination of delinquency, the crucial inquiry is whether the act committed is designated a crime under a statute, not whether the juvenile could be criminally prosecuted under the statute. In re P.M., 156 Vt. 303, 592 A.2d 862 (1991).

Since a delinquent act is defined as an act designated as a crime under State law, and juvenile was found to have engaged in conduct which would constitute the crime of engaging in lewd or lascivious conduct with a child, under the plain language of the statutory provisions, juvenile could be found guilty of having committed a delinquent act. In re P.M., 156 Vt. 303, 592 A.2d 862 (1991).

Since all constitutional guarantees associated with traditional prosecutions apply to juvenile delinquency proceedings, Supreme Court will not search the record or accept conclusionary findings which merely repeat the definition of "delinquent act" in this section. In re R.B., 134 Vt. 368, 360 A.2d 77 (1976).

Where, though it was stipulated that a lewd and lascivious act was performed upon the complaining witness, no other facts were stipulated, the only finding was that the alleged delinquent committed a lewd act, and the lower court judge failed to state the facts bringing the case within the ambit of 13 V.S.A. § 2602, making it a crime to commit a lewd and lascivious act on a child under the age of 16, a delinquent child being defined as one who has committed a delinquent act and such an act being defined as an act designated a crime under the laws of the State, the ultimate conclusion of delinquency could not stand; and argument that the act had been stipulated to was to no avail where the ultimate finding of delinquency and who had committed the act were disputed. In re R.B., 134 Vt. 368, 360 A.2d 77 (1976).

3. Legal custody.

Juvenile court may not dictate the placement of a juvenile, for this would contravene the authority granted the legal custodian by subdivision (a)(10) of this section. In re J.S., 153 Vt. 365, 571 A.2d 658 (1989).

As legal custodian, Department of Social and Rehabilitation Services had authority to place juvenile at a residential group home on a nonemergency basis, regardless of the fact that original disposition report prepared by the Department recommended continued placement at a foster home. In re J.S., 153 Vt. 365, 571 A.2d 658 (1989).

Juvenile court lacked authority to require Department of Social and Rehabilitation Services to obtain court approval for modification of a disposition order to effectuate a change in the placement of a child within Department's custody. In re J.S., 153 Vt. 365, 571 A.2d 658 (1989).

Department of Social and Rehabilitation Services, as legal custodian of a juvenile adjudicated to be a child in need of care and supervision, had authority to place the juvenile in a group home without judicial approval, so long as the placement was not prohibited by statute. In re B.L., 149 Vt. 375, 543 A.2d 265 (1988).

The definition of "legal custody" in subdivision (a)(10) of this section leaves no doubt that once a child is placed in legal custody his or her custodian has the authority to determine where he or she shall be placed, and implicit in the subdivision is the admonition that the juvenile court has no authority to dictate where and with whom a juvenile should live, since this would contravene the clear authority granted to the legal custodian. In re G.F., 142 Vt. 273, 455 A.2d 805 (1982).

4. Need of care or supervision .

In statute defining a child in need of care or supervision (CHINS) as one who, among other things, is "without proper parental care," use of term "parental care" does not compel a CHINS adjudication whenever incapacitated parents leave their children with relatives or others to provide "parental" care during period of incapacitation. In re G.C., 170 Vt. 329, 749 A.2d 28 (2000).

Notice to parents in CHINS cases is sufficient if the supporting affidavits recite the substance of the allegations plainly and with particularity so that the parties are afforded an adequate opportunity to respond; thus where the petitions clearly noted that the State was proceeding under § 5502(a)(12)(A) and (B) and specific allegations appeared in the affidavits, the court was free to conclude that the children were CHINS under either subsection of the statute, and the parent was not denied adequate notice. In re F.P., 164 Vt. 117, 665 A.2d 597 (1995).

The State is not required to make an election under subdivision (a)(12) of this section, as its possible for a child to be in need of care or supervision because of the existence of circumstances described in one or more of the subdivisions of subdivision (a)(12). In re R.M., 150 Vt. 59, 549 A.2d 1050 (1988).

Although it would be better practice for the State to provide for specific allegations of the grounds relied on in a petition to have a child declared to be in need of care or supervision, a petition which merely quotes the definition of a child in need of care or supervision in subdivision (a)(12)(B) of this section is sufficient. In re A.D., 143 Vt. 432, 467 A.2d 121 (1983).

In proceedings to have a child declared to be a child in need of care and supervision, it would be better practice for the State to provide for specific allegations of the grounds relied on in its petition. In re S.A.M., 140 Vt. 194, 436 A.2d 736 (1981).

Where there were two affidavits attached to the petition filed in proceedings to have a child declared to be a child in need of care and supervision which plainly recited that the child was "without proper parental care or subsistence, education, medical or other care necessary for her well-being," this was sufficient notice of the grounds on which the State based its case that the child was in need of care and supervision. In re S.A.M., 140 Vt. 194, 436 A.2d 736 (1981).

*5. Evidence.

Minor was properly enrolled in a home-study program under statute because Commissioner of Education failed to order hearing within 45 days of receiving mother's notice of enrollment; minor could therefore not properly be adjudicated a child in need of care and supervision on basis of truancy from school. In re T.M., 171 Vt. 1, 756 A.2d 793 (2000).

Family court's determination that infant child was in need of care or supervision (CHINS) was supported by evidence of mother's extensive psychiatric history, and although there was no evidence that foster-care arrangement for mother and child had failed to provide child with support at time it was removed from foster family's home, family court correctly focused on likelihood of prospective harm to child. In re G.C., 170 Vt. 329, 749 A.2d 28 (2000).

Evidence did not adequately support finding that child was in need of care and supervision (CHINS), where finding was based on mother's disbelief of a single act of alleged abuse by her boyfriend, and there was testimony that child had injured his head by falling on ice. In re T.R., 169 Vt. 574, 730 A.2d 621 (mem.) (1999).

There must be some evidence of a sexual motive or intent for a finding of sexual abuse. In re D.C., 160 Vt. 608, 648 A.2d 816 (mem.) (1993).

Evidence that, for substantial periods, child was unclean, poorly clothed, and exposed to dangerous living conditions was sufficient to support finding that child was in need of care or supervision. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

Generally, an allegation of sexual abuse by a stranger in the home is insufficient to support a CHINS finding as an innocent family should not be punished for another's crime; but a CHINS finding is proper in circumstances in which children suffer not from an isolated incident of abuse, but rather are being raised in a manner that allows such abuse to occur and subjects them to dangers that their parent cannot prevent. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

For purposes of determination of whether a child is in need of care and supervision (CHINS), the fact that the child refuses to return home after staying with a relative for a short period of time with parental permission cannot support the conclusion that the child is without or beyond the control of his parents. In re B.B., 155 Vt. 365, 584 A.2d 1126 (1990).

Where evidence did not support juvenile court's determination that child was in need of care and supervision (CHINS) on the basis that she had run away from home and refused to return and was thus beyond parental control, fact that evidence might have supported the same conclusion on alternate basis of parental abuse would not suffice to uphold CHINS determination; Supreme Court would not reconstruct the State's case on a theory not relied upon in the petition and not accepted by the juvenile court. In re B.B., 155 Vt. 365, 584 A.2d 1126 (1990).

Court which transferred legal custody and guardianship of two children to the Commissioner of Social and Rehabilitation Services did not err in concluding that the children were in need of care and supervision where evidence adduced at hearings disclosed that the mother had applied a commercial cleanser to the body of one child when he was an infant, had threatened to throw him from a second-story porch, had tried to strangle him, when he was three years old that child had told a social worker that he had been punched and kicked by his mother, on another occasion that same social worker had witnessed the mother shove a bassinet containing the other child against a couch and them remove the infant by one leg and carry her in that manner into another room, the mother had once struck one of the children causing a significant bruise to his jaw, banged his head against the wall and threw him to the floor, the mother had been offered mental health treatment as well as parental and marriage counselling but her cooperation with these efforts had been infrequent or inadequate, and the children's stepfather had been unable to control the mother's violent behavior or provide a stable and caring atmosphere in the presence of the mother. In re T.L.S., 144 Vt. 536, 481 A.2d 1037 (1984).

Where grandparents of child who was subject of proceedings to determine whether child was in need of care and supervision did not have legal custody of the child, but merely cared for the child, evidence that grandparents failed to provide care to child was not necessary to support filing of petition alleging that child was in need of care and supervision and seeking transfer of custody of child to State. In re S.A.M., 140 Vt. 194, 436 A.2d 736 (1981).

Any time the State seeks to interfere with the rights of parents on the generalized assumption that the children are in need of care and supervision it must first produce sufficient evidence to demonstrate that the statutory directives allowing such intervention are fully satisfied. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

Court was justified in assuming jurisdiction to determine if child was in need of care or supervision and in rendering its conclusion that child was an abused child without proper parental care and control, although State had not demonstrated that both parents were involved in the abuse, or showed a culpable disinterest in the child's welfare. In re N.H., 135 Vt. 230, 373 A.2d 851 (1977).

*6. Findings.

Family court's findings supported the conclusion that the father physically abused his children, despite his assertion that he had a constitutional right to hit his children and that unless the court found that the children's general health was threatened by his blows or that those blows resulted in medical attention it could not conclude that his corporal punishment was abusive and unreasonable. In re F.P., 164 Vt. 117, 665 A.2d 597 (1995).

Where ample evidence justified family court's determination that child was without proper parental care as to her mother and there was no evidence that her father was ready, willing, or able to undertake custody, any error in court's CHINS ruling as to abuse or abandonment was harmless. In re A.O., 161 Vt. 302, 640 A.2d 537 (1994).

On appeal from determination that child was in need of care and supervision (CHINS), facts of father's abuse and mother's refusal or inability to keep daughter from husband's sole company were clear on the record and were sufficient, standing alone, to support CHINS finding as a matter of law. In re C.M., 157 Vt. 100, 595 A.2d 293 (1991).

In disposition order determining that three siblings were children in need of care and supervision, in which the court made a specific finding of abuse only with respect to the eldest child, findings concerning the two younger children, although brief, were sufficient in the circumstances; testimony of eldest child provided sufficient evidence of the abuse of younger siblings and court was justified in finding that a pattern of abuse and general inability of the mother to protect any of the children required the court to protect all three children from further physical violations. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

7. Neglected child.

Lower courts must carry out their duty to state facts which bring a particular neglected child case within the ambit of the statutory law, for the Supreme Court will no longer search the record nor will it accept conclusionary findings which merely repeat the definition of neglected child set forth in the statutes. In re J.M., 131 Vt. 604, 313 A.2d 30 (1973).

Where evidence was undisputed that bruises on the body and injuries on the throat of a ten-month old baby were the result of the father's blows and improper feeding, the child was without proper parental care and "neglected." In re Neglected Child, 129 Vt. 234, 276 A.2d 14 (1971).

A statutory provision as to what constitutes a neglected child should be liberally construed to aid the purpose of its enactment. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

The phrase "without proper parental care" has a less restricted meaning than the word "neglect," which in a legal sense means failure to do what the law requires. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

Provision of this section defining "neglected child" does not require, in cases where the child is sought to be taken from the custody of a parent, that there be a willful conduct by the parent. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

Provision of this section defining "neglected child" did not require that baby which State sought to have declared neglected, and whose father was unknown, be in the physical custody of mother who sought to keep baby. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

Baby whose father was unknown lacked proper parental care and control, and its mother, who sought to keep it, could not meet the demands of this section, where the mother had a mental illness of a lasting type, would probably not recover, was unable to withstand stressful situations, became emotional and upset, was unable to assume responsibility, even for her own personal care, and was confined to a mental hospital. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

Baby was a neglected child within the meaning of this section where its father was unknown and its mother was confined to a mental hospital with a mental illness of a lasting type from which she would probably not recover and was unable to withstand stress, became emotional and upset, and was unable to assume responsibility, even for her personal care. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

Where mental condition of mother of baby whose father was unknown and which State sought to have declared neglected was such that she was unable to withstand stressful situations, became emotional and upset, was unable to assume responsibility, and was not competent to be responsible for her own personal care, whether the baby had been under her actual care and custody made no difference. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

8. Burden of proof.

At the merits stage of a CHINS proceeding, the State has the burden to establish by a preponderance of the evidence that the children in question are in need of care or supervision, i.e., that they have been abandoned or abused or are without proper parental care or subsistence necessary for their well-being. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

At a merits hearing, the burden is upon the State to show, by a preponderance of the evidence, that a child is in need of care or supervision under subdivision (a)(12) of this section, by establishing that the child has been either abandoned or abused, or is without proper parental care or subsistence necessary for his well-being. In re R.B., 152 Vt. 415, 566 A.2d 1310 (1989), cert. denied, Appleby v. Young, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990).

9. Court-ordered psychiatric examination.

Where there was no statutory authorization for court to order a psychiatric examination of the mother in proceeding upon petition alleging her children were in need of care and supervision, the psychiatrist's report and testimony should have been excluded from evidence, and given the insufficiency of the State's case without that evidence, the decision that the children were without parental care necessary for their emotional and mental well-being and that they should be transferred to the State, with residual rights remaining in the mother, must be reversed. In re T.L.S., 139 Vt. 197, 425 A.2d 96 (1980).

10. Educational neglect and truancy.

A child in need of care and supervision (CHINS) petition based on educational neglect and truancy against a child was not required to be dismissed as moot because he reached the age of 16 before the merits hearing was held. In re A.V., 176 Vt. 568, 844 A.2d 739 (2003).

Family court's adjudication of juveniles as children in need of care and supervision (CHINS) based on educational neglect and truancy was proper where the evidence as a whole entitled the court to conclude that the children's lack of progress was the result of the inadequate education provided to them by their parents at home. In re A.V., 176 Vt. 568, 844 A.2d 739 (2003).

Cited. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981); In re S.H., 141 Vt. 278, 448 A.2d 148 (1982); In re Y.B., 143 Vt. 344, 466 A.2d 1167 (1983); In re L.R.R., 143 Vt. 560, 469 A.2d 1173 (1983); In re J.R., 147 Vt. 7, 508 A.2d 719 (1986); In re L.S., 147 Vt. 36, 509 A.2d 1017 (1986); In re T.D., 149 Vt. 42, 538 A.2d 176 (1987); In re K.M., 149 Vt. 109, 539 A.2d 549 (1987); In re B.J.C., 149 Vt. 196, 540 A.2d 1047 (1988); In re L.T., 149 Vt. 473, 545 A.2d 522 (1988); In re J.R., 153 Vt. 85, 570 A.2d 154 (1989); In re M.M., 153 Vt. 102, 569 A.2d 463 (1989); In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989); In re S.G., 153 Vt. 466, 571 A.2d 677 (1990); In re M.C., 156 Vt. 642, 590 A.2d 882 (mem.) (1991); In re B.F., 157 Vt. 67, 595 A.2d 280 (1991); In re C.S., 158 Vt. 339, 609 A.2d 641 (1992); In re D.B., 161 Vt. 217, 635 A.2d 1207 (1993); Estate of Sumner v. Department of Social & Rehabilitation Services, 162 Vt. 628, 649 A.2d 1034 (mem.) (1994); In re B.M., 165 Vt. 194, 679 A.2d 891 (1996); In re L.H., 165 Vt. 591, 682 A.2d 969 (mem.) (1996); In re A.W., 167 Vt. 601, 708 A.2d 910 (mem.) (1998); Dalmer v. State, 174 Vt. 157, 811 A.2d 1214 (2002), cert. denied, 537 U.S. 1110, 123 S. Ct. 891, 154 L. Ed. 2d 782 (2003).

Annotations From Former § 5503

1. Generally.

Under 33 V.S.A. § 5503(a), the family court has exclusive jurisdiction over all proceedings concerning any child who is or who is alleged to be a child in need of care or supervision (CHINS); the statute clearly empowers the family court to hear the CHINS petition, regardless of its merit. E.J.R. v. Young, 162 Vt. 219, 646 A.2d 1284 (1994).

The welfare of the child lay at the very foundation of the statutes giving to juvenile courts jurisdiction over certain minors. In re Gomez, 113 Vt. 224, 32 A.2d 138 (1943).

2. Construction with other laws.

Although this section confers broad jurisdiction in cases of abuse and neglect, in most instances involving interstate disputes the Uniform Child Custody Jurisdiction Act, 15 V.S.A. § 1031 et seq., will operate to require this State to decline to exercise jurisdiction in deference to the other state where the latter is the home state of the child or if the other state has jurisdiction over the matter and is the more appropriate forum. In re B.J.C., 149 Vt. 196, 540 A.2d 1047 (1988).

Where children were found to be in need of care and supervision, and case plan submitted to court by Department of Social and Rehabilitation Services pursuant to section 655 (now § 5527) of this title included a condition that mother obtain counselling, mother's claim that the Department should pay for her counseling fees, although related to the case plan, was not a proceeding over which the juvenile court had exclusive jurisdiction under subsection (a) of this section, and Human Services Board erred in determining that it lacked subject matter jurisdiction to address mother's appeal of the Department's denial of her claim. In re Kirkpatrick, 147 Vt. 637, 523 A.2d 1251 (1987).

This section and section 667 (now § 5540) of this title, which give the juvenile court the ultimate decision as to what is in the child's best interest, clearly imply the authority of the juvenile court to reject a treatment plan proposed by the legal guardian; the requirement of section 655 (now § 5527) of this title, governing disposition reports, that the Department of Social and Rehabilitation Services or Department of Corrections submit a recommended case plan to the juvenile court would be meaningless if the juvenile court had no authority to reject such recommendation. In re G.F., 142 Vt. 273, 455 A.2d 805 (1982).

3. Nonresidents.

Juvenile court had subject matter jurisdiction over nonresident child brought into the State under exigent circumstances by a relative who had removed the child from the mother's home in Connecticut because of an abusive situation. In re B.J.C., 149 Vt. 196, 540 A.2d 1047 (1988).

4. Effect of marriage.

The jurisdiction of the juvenile court over a child who was the ward of the board of charities and probation and subject to the control of the court was not affected by the child's marriage, and thereafter the court could lawfully take such action with reference to her discipline and control as the circumstances warranted. In re Hook, 95 Vt. 497, 115 A. 730 (1922).

5. Jurisdiction of other courts.

Upon proper petition a municipal court sitting as a juvenile court must exercise jurisdiction over dependent and neglected children despite the fact that county court has exercised or is exercising jurisdiction over same children in a divorce proceeding. 1958-60 Op. Atty. Gen. 163.

Section gives justice and municipal courts jurisdiction of cases coming within the provisions of this chapter, even though county court through prior divorce proceedings has made an order with respect to custody of the juvenile. 1936-38 Op. Atty. Gen. 388.

6. Record to support jurisdiction.

Although family court may have lacked jurisdiction to transfer custody prior to child's birth, any error was harmless in view of proceedings which occurred later, which were supported by evidence of mother's incapacities both before and after child's birth. In re J.M., 170 Vt. 587, 749 A.2d 17 (mem.) (2000).

Juvenile court had the duty to state the facts which brought proceeding relating to infant allegedly neglected and suffering from injuries claimed to have been inflicted by its father within the ambit of this chapter. In re F.E.B., 133 Vt. 463, 346 A.2d 191 (1975).

When acting as a juvenile court a municipal court exercises special and limited statutory powers not according to the common law, and nothing is presumed in favor of its jurisdiction, so that facts necessary to confer it must affirmatively appear from the record and if they do not so appear, its judgments are void. In re McMahon Children, 115 Vt. 415, 63 A.2d 198 (1949).

Where municipal court acts as a juvenile court, the facts necessary to confer jurisdiction must affirmatively appear from the record and the exercise of jurisdiction did not imply a previous ascertainment of those facts. Town of Brighton v. Town of Charleston, 114 Vt. 316, 44 A.2d 628 (1945).

Cited. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989); In re B.C., 169 Vt. 1, 726 A.2d 45 (1999).

Annotations From Former § 5504

1. Construction with other laws.

District court sitting as a juvenile court improperly included, in disposition order in neglected child proceeding, a provision that the disposition be reviewed in six months, and the improper procedure could not be justified by either statute allowing modification of order on motion or statute allowing continuation of the disposition hearing, and the order of the review hearing transferring residual parental rights to the state would be reversed. In re A.A., 134 Vt. 41, 349 A.2d 230 (1975).

2. Discretion.

Defendant had no rights to be affected by amendment of this section which allowed the court to extend its jurisdiction over juveniles until their 21st birthday, and the trial court, by denying defendant's motion to transfer the proceedings against him to juvenile court based upon its legal conclusion that the juvenile court's jurisdiction over defendant would end when he became 18 years old, failed to exercise any discretion concerning the juvenile court's authority to retain jurisdiction over defendant until the age of 21. State v. Willis, 145 Vt. 459, 494 A.2d 108 (1985).

3. Court.

The court referred to in chapter was not the justice of the peace or the municipal court judge but the juvenile court; the judges could change from time to time, but the court still retained jurisdiction of its cases and could make any authorized order therein. 1938-40 Op. Atty. Gen. 343.

Cited. In re G.F., 142 Vt. 273, 455 A.2d 805 (1982); In re A.S., 152 Vt. 487, 567 A.2d 1139 (1989), cert. denied, Appleby v. Young, 493 U.S. 1087, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990); In re A.K., 153 Vt. 462, 571 A.2d 75 (1990); In re C.S., 158 Vt. 339, 609 A.2d 641 (1992).

Annotations From Former § 5505

1. Constitutional rights.

Provision of statute granting original jurisdiction to criminal court where 14- to 16-year-olds are charged with enumerated serious offenses which makes discretionary the trial court's transfer of such proceeding does not violate due process; the Supreme Court requires a hearing and findings of fact and will review a transfer decision under an abuse-of-discretion standard. State v. Buelow, 155 Vt. 537, 587 A.2d 948 (1990).

While 16-year-old defendant had no absolute right to a transfer to juvenile court, he had the right to have the court consider his motion to transfer without surrendering the presumption of innocence or any other right guaranteed by due process principles. State v. Smail, 151 Vt. 340, 560 A.2d 955 (1989).

2. Confidentiality of proceedings.

Juvenile records are not protected from public scrutiny in proceedings to transfer a case from district court to juvenile court; the statutory scheme provides for the confidentiality of juvenile proceedings only after a transfer determination and not before. In re R.D., 154 Vt. 173, 574 A.2d 160 (1990).

In order to give effect to this section, the State's Attorney may utilize otherwise confidential juvenile records to oppose a motion by defendant to transfer his case to juvenile court. In re R.D., 154 Vt. 173, 574 A.2d 160 (1990).

Juvenile proceedings are confidential after a determination to transfer to juvenile court under subsection (b) of this section, not before. In re K.F., 151 Vt. 211, 559 A.2d 663 (1989).

Pending decision on motion to transfer to juvenile court in accordance with subsection (b) of this section, district court properly denied motion to seal court records, exclude general public from proceedings and prohibit any person from giving any publicity as to any proceeding in connection with pending arraignment of 15-year-old on manslaughter charges. In re K.F., 151 Vt. 211, 559 A.2d 663 (1989).

3. Discretion.

In considering defendant's motion to transfer his case to juvenile court, the trial court did not err in finding that the prospect for adequate protection of the public and the likelihood of reasonable rehabilitation of defendant weighed against transfer. The trial court's finding that defendant's supervisory needs would exceed the temporal grasp of the juvenile court was supported by the testimony of the State's expert, and the court would not question on appeal the factfinder's decision to credit that testimony over the contrary testimony of defendant's expert; it was within the trial court's discretion to conclude that despite there being no public-protection basis for retaining jurisdiction, the need for more time to rehabilitate defendant supported trial in district court. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

When a juvenile defendant charged with the second-degree murder of a man who came to his home to have sex with his mentally ill mother sought transfer of his case to juvenile court, his case had to be considered in the context of defendant's increasing frustration at his inability to control the escalating events at home - events of the most humiliating and degrading nature for a child. That these events might have combined to overwhelm his youthful judgment was to inform the district court's discretion in light of the special status accorded juvenile cases by the Legislature. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

The decision to transfer a case to juvenile court lies within the sound discretion of the trial court, and the Supreme Court will review the court's exercise of discretion on a case-by-case basis. State v. Buelow, 155 Vt. 537, 587 A.2d 948 (1990).

Where a defendant between the ages of 14 and 16 is charged with murder, the criminal court has exclusive original jurisdiction over the matter, but may transfer such a proceeding to juvenile court. State v. Buelow, 155 Vt. 537, 587 A.2d 948 (1990).

Although transfer proceedings are open to the public and juvenile records are not statutory protected from public scrutiny, the trial judge should exercise his discretion to accommodate a defendant's concern for the confidentiality of his juvenile records. In re R.D., 154 Vt. 173, 574 A.2d 160 (1990).

To achieve the rehabilitative functions of the juvenile justice systems, the Legislature left the propriety of transferring a case to juvenile court to the sound discretion assessment in this regard, the court must have access to otherwise confidential juvenile records. In re R.D., 154 Vt. 173, 574 A.2d 160 (1990).

Denial of motion to transfer case to juvenile court was affirmed where trial court properly exercised its discretion to protect confidentiality of defendant's juvenile records insofar as possible under the circumstances by reviewing the records in camera and striking references to it in the State's memorandum. In re R.D., 154 Vt. 173, 574 A.2d 160 (1990).

Trial courts have broadest possible discretion in ruling on motions to transfer criminal cases to juvenile court and such discretionary decisions will not be revealed if there is a reasonable basis for court's action. State v. Lafayette, 152 Vt. 108, 564 A.2d 1068 (1989), overruled on other grounds, In re J.G. (1993) 160 Vt. 250, 627 A.2d 362.

Trial court's denial of 16-year-old's motion for transfer to juvenile court under subsection (b) of this section was not abuse of discretion where court's decision was explained in terms of defendant's age, seriousness of offenses charged, and employment and emancipation, even though admission of guilt and agreement on restitution, which were mentioned by both defense counsel and the court, might have resulted in a different outcome on transfer motion. State v. Smail, 151 Vt. 340, 560 A.2d 955 (1989).

The decision to transfer a criminal proceeding to juvenile court is within the sound discretion of the trial court. State v. Lafayette, 148 Vt. 288, 532 A.2d 560 (1987), overruled on other grounds, In re J.G. (1993) 160 Vt. 250, 627 A.2d 362; State v. Barrette, 153 Vt. 476, 571 A.2d 1137 (1990).

Motions to transfer criminal proceedings to juvenile court are discretionary. State v. Willis, 145 Vt. 459, 494 A.2d 108 (1985); State v. Smail, 151 Vt. 340, 560 A.2d 955 (1989).

Defendant had no rights to be affected by amendments of section 634 [now § 5504] of this title, governing retention of juvenile court jurisdiction, which allowed the court to extend its jurisdiction over juvenile until their 21st birthday, and the trial court, by denying defendant's motion to transfer the proceedings against him to juvenile court based upon its legal conclusion that the juvenile court's jurisdiction over defendant would end when he became 18 years old, failed to exercise any discretion concerning the juvenile court's authority to retain jurisdiction over defendant until the age of 21. State v. Willis, 145 Vt. 459, 494 A.2d 108 (1985).

Where one of the reasons given by the trial court for denying juvenile defendant's motion to transfer proceedings against him to juvenile court was reasonable and not related to its erroneous conclusion that the juvenile court could retain jurisdiction over defendant only until his 18th birthday, and other reasons were also unaffected by the length of time the juvenile court could have retained jurisdiction over defendant, defendant failed to carry his burden to show that there were not reasonable bases for the discretionary of the trial court, and therefore, that the error of the trial court concerning the extent of the juvenile court's possible jurisdiction over defendant was prejudicial. State v. Willis, 145 Vt. 459, 494 A.2d 108 (1985).

In the case of a juvenile charged with breaking and entering in the daytime with intent to commit larceny and receiving and aiding in the concealment of stolen property,, where denial of his motion to transfer his case to juvenile court was based on findings which set forth the prior record of defendant which included charges of unlawful trespass involving property damage which were dismissed when restitution was made for the damages, and an admission of guilt in connection with another unlawful trespass for which he was placed on probation, the court did not abuse its discretion in denying the motion. Stave v. Jacobs, 144 Vt. 70, 472 A.2d 1247 (1984).

4. Evidence.

In proceeding to transfer case to juvenile court, the trial court properly took into account prior adjudication of truancy and delinquency in defendant's juvenile record. In re R.D., 154 Vt. 173, 574 A.2d 160 (1990).

5. Burden of proof.

A party 14 to 16 years of age initially within the jurisdiction of the criminal court on basis of being charged with statutorily enumerated serious offense who seeks transfer of the proceeding to juvenile court has the burden of showing that the criminal court is an inappropriate forum. State v. Buelow, 155 Vt. 537, 587 A.2d 948 (1990).

6. Guardian ad litem.

Trial court's failure to appoint a guardian ad litem prior to hearing defendant's motion to transfer four felony cases to juvenile court was harmless error where defendant was represented by counsel and no prejudice was shown below or argued on appeal. State v. Barrette, 153 Vt. 476, 571 A.2d 1137 (1990).

7. Reasons for refusal to transfer.

Trial court's refusal to transfer criminal case to juvenile court was supported where adult probation could be more effectively enforced than juvenile probation, defendant lacked empathy or sadness about doing crimes, defendant's prior juvenile record included petty larceny, burglary, and retail theft, and defendant's crimes of simple assault and unlawful mischief were more serious than past offenses. State v. Lafayette, 152 Vt. 108, 564 A.2d 1068 (1989), overruled on other grounds, In re J.G. (1993) 160 Vt. 250, 627 A.2d 362.

Trial court's denial of motion to transfer criminal case to juvenile court, based on inability of juvenile court to effectively enforce restitution, was erroneous because juvenile court could use its contempt power under section 666 [now § 5539] of this title to enforce or punish noncompliance with its orders. State v. Lafayette, 152 Vt. 108, 564 A.2d 1068 (1989), overruled on other grounds, In re J.G. (1993) 160 Vt. 250, 627 A.2d 362.

Emancipation of 16-year-old defendant was supported by father's testimony that defendant was pretty much emancipated and that plans to return to school were uncertain, and seriousness of crime, found by trial court in severe property damage connected with burning of car and defendant's contempt for victims, was sufficient to warrant treatment as adult, when considered with findings on emancipation. State v. Smail, 151 Vt. 340, 560 A.2d 955 (1989).

8. Findings.

In considering a motion by a juvenile defendant to transfer his second-degree murder case to juvenile court, the factor of whether the offense was against persons or property was not entitled to great weight, because it was nearly identical to the factor concerning the offense's seriousness. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

Ability of the public to follow a case through the judicial system was not a proper consideration in denying defendant's motion to transfer his case to juvenile court, and was not entitled to independent weight as a matter of law. A primary purpose of the juvenile court system is to protect juveniles from the taint of criminality that inevitably results from the publicity and permanence of convictions in the district court; the other provisions of the chapter regarding judicial proceedings in juvenile cases, including the discretionary transfer provisions, are to be construed to give effect to the purposes announced for the chapter. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

When a juvenile defendant charged with second-degree murder sought transfer of his case to juvenile court, the trial court was plainly correct in finding that second-degree murder was a serious offense. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

In considering a motion by a juvenile defendant to transfer his case to juvenile court, it was within the province of the trial court to determine from the weight of the evidence that the offense was committed in an aggressive, violent, or premeditated manner. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

By definition, in all cases in which a juvenile defendant seeks transfer from the district court to the juvenile court, the "prosecutive merit" question has already been decided by the court's finding of probable cause. Accordingly, where defendant sought a transfer to juvenile court, the trial court's conclusion that this factor weighed against transfer was erroneous. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

In considering a defendant's motion to transfer a case to juvenile court, the better approach to the prosecutive-merit analysis is for the court to determine whether the State can make out a prima facie case for the charged crime. That is, the State must prove that it has evidence that would fairly and reasonably tend to show beyond a reasonable doubt that defendant committed the offense. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

Appellate review of a trial court's decision on a motion to transfer a case to juvenile court is not based solely on a mathematical computation of factors; to do so would suggest unnecessary limits on the exercise of discretion. The trial court must also exercise its discretion based on consideration of all the circumstances, whether assigned or assignable to any particular factor or factors. State v. Dixon, 185 Vt. 92, 967 A.2d 1114 (2008).

Where trial court acted within its discretion denying motion of 14-year-old defendant charged with murder to transfer proceeding to juvenile court, the court's imprecise and mistaken characterizations that statute granting criminal curt original jurisdiction created a "presumption" against defendant's suitability for juvenile proceedings, and that defendant had not presented any "extraordinary attributes" that would remove him from the jurisdiction of the criminal court were not significant where findings and conclusions otherwise demonstrated the court's understanding of its jurisdiction and discretion. State v. Buelow, 155 Vt. 537, 587 A.2d 948 (1990).

Under subsection (b) of this section adequate findings of fact are required, so that Supreme Court may determine whether the sound discretion of the trial court implicitly mandated by subsection (b) was in fact exercised. State v. Jacobs, 144 Vt. 70, 472 A.2d 1247 (1984).

Purported findings of district court which denied defendant's motion to transfer his case to juvenile court which merely recited testimony of witnesses and summarized the arguments and position of the State's Attorney could not stand as findings. State v. Jacobs, 144 Vt. 70, 472 A.2d 1247 (1984).

Determination under this section is critical one, and literal compliance with this section is not enough; adequate findings of fact are required, so that it may be determined whether sound discretion implicitly mandated by statute was in fact exercised. State v. Powers, 136 Vt. 167, 385 A.2d 1067 (1978).

Where determination is to be made whether to transfer offender to juvenile court to be treated as delinquent child rather than as criminal, hearing, and findings of fact resulting therefrom, must be accorded offender on remand, and, because of summary and arbitrary nature of ruling that denied these rights in first instance, to avoid any claim of bias or prejudice on rehearing it is advisable that different judge preside over hearings on remand. State v. Powers, 136 Vt. 167, 385 A.2d 1067 (1978).

9. Appeal.

Where motion of 23-year-old defendant to transfer charges to juvenile court would result in dismissal of the charges since juvenile court would not have jurisdiction to try defendant, the motion to transfer charges was like a motion to dismiss that has been denied by the trial court and fell outside the "small class" of decision excepted from the final-judgment rule; however, the Supreme Court would review the merits in this instance in order to conserve judicial resources. State v. Gilman, 155 Vt. 649, 583 A.2d 84 (mem.) (1990).

Trial court's denial of 23-year-old defendant's motion to transfer to juvenile court charges of assault and robbery resulting in physical injury allegedly committed when defendant was 16 was proper in light of defendant's extensive juvenile record and his mental status and of defendant's failure to show there was no reasonable basis for trial court's decision. State v. Gilman, 155 Vt. 649, 583 A.2d 84 (mem.) (1990).

The only issues in an appeal from an order denying transfer of a criminal proceeding to juvenile court would be the sufficiency of the findings made by the trial court to support its decision and whether it abused its discretion in denying transfer. State v. Lafayette, 148 Vt. 288, 532 A.2d 560 (1987), overruled on other grounds, In re J.G. (1993) 160 Vt. 250, 627 A.2d 362.

Order denying transfer of criminal proceeding to juvenile court was not an appropriate subject for interlocutory appeal pursuant to V.R.A.P. 5 (b)(1), since the issues involved in such appeal would hinge in large part, if not entirely, on an analysis of the factual record, and, therefore, were not "controlling questions of law" within the meaning of V.R.A.P 5(b)(1). State v. Lafayette, 148 Vt. 288, 532 A.2d 560 (1987), overruled on other grounds, In re J.G. (1993) 160 Vt. 250, 627 A.2d 362.

10. Habitual offenders.

The language of Vermont statutes defining a felony and providing that criminal proceedings against defendants between the ages of 16 and 18 may be transferred to juvenile court from the criminal courts at the discretion of the criminal courts makes plain that the Legislature intended that felony convictions of minor defendants could, in the trial court's discretion, be counted toward habitual-criminal status under the Vermont's habitual-criminal statute. State v. Rideout, 182 Vt. 113, 933 A.2d 706 (July 20, 2007).

Cited. State v. Charbonneau, 154 Vt. 373, 576 A.2d 1253 (1990).

Annotations From Former § 5506

1. Jurisdiction.

Unauthorized retransfer of sexual assault charge from family court to district court was a procedural shortcoming that was waived by defendant's guilty plea, and therefore district court did not lack jurisdiction to order adult probation or imprisonment. State v. Page, 171 Vt. 110, 757 A.2d 1038 (2000).

Juvenile court was without jurisdiction to retransfer 16-year-old defendant to district court for prosecution as an adult on a simple assault charge, since there had been no adjudication of delinquency and simple assault charge did not fall within the list of serious offenses which could be transferred to adult court. State v. Charbonneau, 154 Vt. 373, 576 A.2d 1253 (1990).

Cited. State v. Jacobs, 144 Vt. 70, 472 A.2d 1247 (1984).

Annotations From Former § 5510

1. Due process.

That no law enforcement officer testified at detention hearing relating to baby taken into custody on grounds of neglect was not a deprivation of parents' due process rights where a social worker provided ample evidence to believe the child was in immediate danger from his surroundings. In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972).

2. Evidence.

In the case of three children declared to be in need of care and supervision and placed in State custody with residual rights remaining in the parents, findings of the trial judge that the children's home was "extremely ill-kept," had "food and human feces smeared on walls" and "an extremely foul and sickening odor," that two of the children had "conduct disorders" resulting from being "raised under high levels of stress with harsh and primitive parental care" and his conclusion that the children had "been subject to an intolerable environment," which were supported by a preponderance of the evidence, warranted the nonpermanent deprivation of parental rights pursuant to this section. In re A.D., 143 Vt. 432, 467 A.2d 121 (1983).

3. Applicability.

Plaintiffs failed in their allegations that defendants, a family center and its employee, were guilty of negligence per se based on their taking a child into custody and failing to deliver him to his parents or the juvenile court in violation of the Juvenile Procedures Act, because the law applied only to children taken into custody by a law enforcement officer and no law enforcement officer was involved in the case during the period covered by plaintiffs' argument. Dalmer v. State, 174 Vt. 157, 811 A.2d 1214 (2002), cert. denied, 537 U.S. 1110, 123 S. Ct. 891, 154 L. Ed. 2d 782 (2003).

4. Construction.

Plaintiffs failed in their allegations that defendants, a family center and its employee, were guilty of negligence per se based on their taking a child into custody and failing to deliver him to his parents or the juvenile court in violation of the Juvenile Procedures Act, because, reading the applicable statutes together, the intent is that the custodian has only physical custody, that is, the physical possession of the child, and there was no evidence that defendants had physical possession of the child or imposed restrictions on his liberty and thus they did not hold the child in custody as a matter of law. Dalmer v. State, 174 Vt. 157, 811 A.2d 1214 (2002), cert. denied, 537 U.S. 1110, 123 S. Ct. 891, 154 L. Ed. 2d 782 (2003).

Cited. Robison v. Via, 821 F.2d 913 (2d Cir. 1987), affirmed, Golino v. City of New Haven, 950 F.2d 864 (2d Cir. 1991).

Annotations From Former § 5511 and 5512

1. Construction.

Plaintiffs failed in their allegations that defendants, a family center and its employee, were guilty of negligence per se based on their taking a child into custody and failing to deliver him to his parents or the juvenile court in violation of the Juvenile Procedures Act, because, reading the applicable statutes together, the intent is that the custodian has only physical custody, that is, the physical possession of the child, and there was no evidence that defendants had physical possession of the child or imposed restrictions on his liberty and thus they did not hold the child in custody as a matter of law. Dalmer v. State, 174 Vt. 157, 811 A.2d 1214 (2002), cert. denied, 537 U.S. 1110, 123 S. Ct. 891, 154 L. Ed. 2d 782 (2003).

Cited. Robison v. Via, 821 F.2d 913 (2d Cir. 1987), affirmed, Golino v. City of New Haven, 950 F.2d 864 (2d Cir. 1991).

Annotations From Former § 5513

Cited. In re J.R., 147 Vt. 34, 509 A.2d 1012 (1986).

Annotations From Former § 5514

1. Purpose.

Temporary detention hearing for child taken into custody by police officer who had reason to believe that child was in immediate danger from his surroundings and that his removal was necessary for his protection was a statutory emergency measure designed to assure prompt judicial supervision over the child. In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972).

2. Nature of proceedings.

A child neglect proceeding is protective, not criminal, in nature, and condemnation of the parents or child is not one of its purposes; therefore, the Due Process Clause does not require the advice of counsel for the child and its parents at a temporary detention hearing held upon taking the child into custody. In re Neglected Child, 130 Vt. 525, 296 A.2d 250 (1972).

Cited. In re J.E.G., 144 Vt. 309, 476 A.2d 130 (1984).

Annotations From Former § 5515

1. Continuance.

Juvenile court used up the 24 hour continuance provision of subsection (a) of this section when it scheduled the detention hearing within 72 hours, and, in the face of a specific objection by juvenile's mother, did not have discretion to grant another continuance. In re L.S., 147 Vt. 36, 509 A.2d 1017 (1986).

2. Retention of custody.

Sole purpose of hearing concerning detention of child is to determine if continued detention is in child's best interest and welfare. In re D.T., 170 Vt. 148, 743 A.2d 1077 (1999).

Disposition order granting legal custody of child in need of care or supervision (CHINS) to Department of Social and Rehabilitation Services (SRS) was vacated where underlying merits determination was invalid; however, on remand, juvenile court would have statutory authority to retain child in SRS custody pending a new CHINS hearing if warranted by the best interests of the child. In re B.B., 155 Vt. 365, 584 A.2d 1126 (1990).

3. Appeals.

Where juvenile's mother never filed an affidavit, pursuant to subsection (b) of this section, stating that she had not been notified of the detention hearing and made no objection to the detention order at the merits hearing or at the disposition hearing, her challenge to the detention order on appeal was untimely. In re J.R., 147 Vt. 34, 509 A.2d 1012 (1986).

4. Delay in decision.

Although juvenile proceedings should be resolved as quickly as is reasonably possible, the time limits established by the governing statutes are directory and not jurisdictional; underlying the statutory scheme is the goal of furthering the best interests of the children whose future is at stake. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

Although CHINS proceedings were unusually protracted between time when the children were taken into temporary custody and the date of the court order finding that the children in fact were in need of care and supervision, and despite the fact that a seven-month delay in the issuance of the court's decision was not explained, the delay was no basis on which to grant relief from the court's order in light of the substantiated allegation that the mother was unable to care adequately for her two children. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

Cited. In re J.E.G., 144 Vt. 309, 476 A.2d 130 (1984); In re J.R., 146 Vt. 185, 499 A.2d 1155 (1985); Robison v. Via, 821 F.2d 913 (2d Cir. 1987), affirmed, Golino v. City of New Haven, 950 F.2d 864 (2d Cir. 1991); In re C.K., 156 Vt. 194, 591 A.2d 57 (1991).

Annotations From Former § 5516

Cited. In re K.F., 151 Vt. 211, 559 A.2d 663 (1989); In re M.C., 156 Vt. 642, 590 A.2d 882 (mem.) (1991); In re M.T., 180 Vt. 643, 912 A.2d 456 (mem.) (November 7, 2006); In re J.L., Juvenile, 181 Vt. 615, 928 A.2d 474 (mem.) (April 25, 2007).

Annotations From Former § 5517

1. Petition by State's Attorney.

There is no requirement that a voluntary petition by a parent, guardian, or person acting in behalf of a child be the only means for the State to intervene and provide substitute parental care and custody for a child; the Commissioner of Rehabilitation Services may request the State's Attorney to file a petition, which gives a court full authority to make the determination of whether or not a child is in need of care and supervision. In re S.A.M., 140 Vt. 194, 436 A.2d 736 (1981).

It is proper for a State's Attorney to draft petitions for commitment of defendant or delinquent juveniles, sign such petitions, and give advice to prospective petitioners with respect to the contents of the petition. 1962-64 Op. Atty. Gen. 475.

Cited. In re L.R.R., 143 Vt. 560, 469 A.2d 1173 (1983); In re J.E.G., 144 Vt. 309, 476 A.2d 130 (1984); In re J.G., 144 Vt. 489, 479 A.2d 153 (1984); Vermont Department of Social & Rehabilitation Services v. United States Department of Health & Human Services, 798 F.2d 57 (2d Cir. 1986); In re C.L., 151 Vt. 480, 563 A.2d 241 (1989); In re H.A., 153 Vt. 504, 572 A.2d 884, cert. denied, 498 U.S. 861, 111 S. Ct. 166, 112 L. Ed. 2d 131 (1990); In re F.E.F., 156 Vt. 503, 594 A.2d 897 (1991); In re M.C., 156 Vt. 642, 590 A.2d 882 (mem.) (1991); In re L.H., 165 Vt. 591, 682 A.2d 969 (mem.) (1996).

Annotations From Former § 5518

Cited. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989).

Annotations From Former § 5519

1. Purpose.

Subsection (a) of this section, which states that a hearing must be held no later than 15 days after the filing of a petition to have children found in need of care or supervision, is a measure intended to protect all of the interests involved and to summon the participation of all parties forthwith. In re R.S., 143 Vt. 565, 469 A.2d 751 (1983).

2. Requirements for hearing.

This section and §§ 5520 and 5532(b) of this title require the family court to provide direct notice of a pending termination petition and hearing to the parents of children who are the subject of the petition, in addition to the parents' attorneys. Because that was not done, a termination order was required to be reversed and the matter remanded for further proceedings. In re M.T., 180 Vt. 643, 912 A.2d 456 (mem.) (November 7, 2006).

Hearing required by subsection (a) of this section occurs when all parties are present, jurisdiction is found, and an entry of a denial or admission to the petition is made. In re J.E.G., 144 Vt. 309, 476 A.2d 130 (1984).

3. Time for hearing.

Although juvenile proceedings should be resolved as quickly as is reasonably possible, the time limits established by the governing statutes are directory and not jurisdictional; underlying the statutory scheme is the goal of furthering the best interests of the children whose future is at stake. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

Although CHINS proceedings were unusually protracted between time when the children were taken into temporary custody and the date of the court order finding that the children in fact were in need of care and supervision, and despite the fact that a seven-month delay in the issuance of the court's decision was not explained, the delay was no basis on which to grant relief from the court's order in light of the substantiated allegation that the mother was unable to care adequately for her two children. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

Provision of this section requiring trial court to fix a time for hearing on petition to declare a child in need of supervision within 15 days of filing of the petition is directory, not jurisdictional, and failure to comply with the time requirements does not automatically divest the trial court of jurisdiction or result in voiding of a child in need of supervision adjudication or disposition order. In re C.I., 155 Vt. 52, 580 A.2d 985 (1990).

Statutory requirement that hearing be held within 15 days of filing petition to declare child in need of supervision was complied with, where hearing which was convened within limit addressed preliminary matters and mother's request for a continuance. In re C.I., 155 Vt. 52, 580 A.2d 985 (1990).

For purposes of statutory requirement that hearings on petition to declare a child in need of supervision be held within 15 days of filing of petition, compliance does not depend on whether a particular hearing is "significant." In re C.I., 155 Vt. 52, 580 A.2d 985 (1990).

Time limits in statutes providing for hearings to determine whether a child is in need of care and supervision and for disposition hearings following such determinations are directory only and not jurisdictional, so that noncompliance does not void either a disposition order or an adjudication that a child is in need of care or supervision. In re J.V., 154 Vt. 644, 573 A.2d 1196 (mem.) (1990).

Where State filed juvenile delinquency petition on January 26, 1981, hearing held on February 5, 1981, at which all parties were present, the court found jurisdiction and probable cause, substitute counsel for juvenile entered a denial to the petition and the court continued the hearing, which reconvened on February 25, 1981, to allow juvenile's regular attorney time to prepare, satisfied requirement of subsection (a) of this section that a hearing be held not later than 15 days after the filing of the delinquency petition. In re J.E.G., 144 Vt. 309, 476 A.2d 130 (1984).

The important policies supporting the need resolution of juvenile proceedings outweigh the hardship which subsection (a) of this section imposes upon parties by requiring them to prepare their cases on short notice. In re R.S., 143 Vt. 565, 469 A.2d 751 (1983); In re J.E.G., 144 Vt. 309, 476 A.2d 130 (1984).

Juvenile court complied with subsection (a) of this section, requiring a detention hearing to be held within 15 days of the filing of a petition to have children found to be in need of care or supervision, where a hearing at which all parties were present was convened within the mandated time but continued to allow the parties additional time to prepare. In re R.S., 143 Vt. 565, 469 A.2d 751 (1983).

Where this chapter required that a hearing be held not later than 15 days after the filing of petition alleging that a child is in need of care or supervision and hearing was held some two months after the filing of the petition, and court did not state the facts which brought the case within the ambit of this chapter, disposition order would be vacated. In re F.E.B., 133 Vt. 463, 346 A.2d 191 (1975).

4. Parties.

In proceedings involving juvenile adjudged to be a child in need of care or supervision, trial court did not have jurisdiction to hear issue concerning Department of Social and Rehabilitation Services' interrogation of juvenile's brother about alleged abuse of the brother, since the brother was not a proper or necessary party under subsection (a) of this section. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989).

Cited. In re A.D., 143 Vt. 432, 467 A.2d 121 (1983); In re J.R., 147 Vt. 34, 509 A.2d 1012 (1986); In re E.W., 169 Vt. 542, 726 A.2d 58 (mem.) (1999).

Annotations From Former § 5520

1. When required.

This section and §§ 5519 and 5532(b) of this title require the family court to provide direct notice of a pending termination petition and hearing to the parents of children who are the subject of the petition, in addition to the parents' attorneys. Because that was not done, a termination order was required to be reversed and the matter remanded for further proceedings. In re M.T., 180 Vt. 643, 912 A.2d 456 (mem.) (November 7, 2006).

A summons is only required prior to a hearing on the merits. In re J.R., 147 Vt. 34, 509 A.2d 1012 (1986).

2. Reasonable diligence.

Attempts to locate putative father of child by phone at his last known address prior to determination of his residual parental rights fell far short of the "reasonable diligence" requirement of subsection (a) of this section. In re C.W., 148 Vt. 282, 532 A.2d 566 (1987).

Annotations From Former § 5523

1. Constitutionality.

Neither the Vermont nor the United States Constitution, as interpreted by the United States Supreme Court or the Vermont Supreme Court, provides a right of public access which overrides the compelling interests served by this section. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).

2. Confidentiality.

The family court, in authorizing disclosure of appellant's alcohol abuse treatment records, erred in failing to consider the potential injury to the physician-patient relationship and to treatment services in balancing the relevant interests, instead looking solely at the embarrassment to appellant from disclosure in light of the nonpublic nature of juvenile proceedings; although it is relevant that juvenile proceedings are not public, the court's inquiry was far too narrow and omitted any consideration of appellant's willingness to participate in treatment if she knew that her diagnosis and treatment information could be used to terminate her parental rights. In re B.S., 163 Vt. 445, 659 A.2d 1137 (1995).

This section requires that juvenile court proceedings be confidential. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).

Provisions of this section are clear and unambiguous; the Legislature did not intend that either the news media or the general public should attend juvenile hearings or report what transpired there. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).

Reading provision of this section dealing with admissibility of the general public to juvenile proceedings and provision dealing with publicity of proceedings together, to give effect to each, leads to the inescapable result that a desire to publicly disseminate the facts of a juvenile proceeding is not a "proper interest in the case or in the work of the court" such as to entitle persons so interested to access to juvenile proceedings. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).

The State's compelling interests in confidential juvenile proceedings prescribed by this section override the countervailing interests of the public and the news media in access to those proceedings and the news media's interest in publicly disseminating what its reporters learn while attending for many reasons: publication of the youth's name could impair the rehabilitative goals of the juvenile justice system; confidential proceedings protect the delinquent from the stigma of conduct which may be outgrown and avoids the possibility that the adult is penalized for what he used to be, or worse yet, the possibility that the stigma becomes self-perpetuating, thereby making change and growth impossible; publication of a delinquent's name may handicap his prospects for adjustment into society, for acceptance by the public, or it may cause him to lose employment opportunities; and public proceedings could so embarrass the youth's family members that they withhold their support in rehabilitative efforts. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).

Argument by newspaper seeking access to juvenile proceedings that pervasive newspaper publicity had already compromised the rehabilitative goals of confidentiality in the particular proceedings, and that, therefore, it should be allowed to attend and publicize proceedings, ignored the purpose of confidentiality to prevent publicity as a reward for the hardcore juvenile delinquent, thereby encouraging him to commit further antisocial acts to attract attention, and to further the legislative goal of expunging the juvenile's delinquency record, which would be vitiated if the same information could at any subsequent time be obtained freely from newspaper files. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).

Argument by newspaper seeking access to juvenile proceedings that because of pervasive publicity there was no longer any reason for the confidentiality imposed by this section in the case before the court, and that a special exception should be made allowing public and private access to the juvenile proceeding, was unacceptable on several grounds; first, publicity sometimes serves as a reward for incorrigible delinquents, encouraging the very behavior sought to be deterred; second, such an approach calls for a case-by-case analysis to determine if, when and to what extent access to juvenile proceedings should be limited; third, such a case-by-case analysis would allow the news media to control access to juvenile proceedings or to base access on chance circumstances and not the child's needs; and finally, this section protects by anonymity not just the names of delinquents but other matters which surface in a juvenile proceeding. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).

3. Question of fact.

Whether an allegedly neglected child is without the proper parental care or control necessary for its well-being within the meaning of § 632 [now § 5502] of this title is a question of fact, to be determined on the facts of the particular case. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

4. Safeguards against abuse.

Safeguards against abuse of powerful parens patriae doctrine include notice, counsel, full hearing at which minutes of proceedings are kept, and an order containing the court's findings. In re J.M., 131 Vt. 604, 313 A.2d 30 (1973).

5. Discretion of judge.

This section specifically prohibits any persons admitted to the hearings from publicly disseminating information gained from a juvenile hearing, except with the consent of the child and his parent or guardian, and no provision is made to give the judge discretion to permit public dissemination of these proceedings. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).

Cited. In re J.R., 146 Vt. 185, 499 A.2d 1155 (1985); State v. Lafayette, 148 Vt. 288, 532 A.2d 560 (1987), overruled on other grounds, In re J.G. (1993) 160 Vt. 250, 627 A.2d 362; In re M.M., 153 Vt. 102, 569 A.2d 463 (1989); State v. LaBounty, 167 Vt. 25, 702 A.2d 82 (1997); State v. Favreau, 173 Vt. 636, 800 A.2d 472 (mem.) (2002).

Annotations From Former § 5524

Cited. In re Inquest Proceedings, 165 Vt. 549, 676 A.2d 790 (mem.) (1996).

Annotations From Former § 5525

1. Guardian ad litem .

Under this section it is discretionary with the juvenile court whether to appoint a guardian for a child in addition to, or in place of, the child's own parent. In re Rich, 125 Vt. 373, 216 A.2d 266 (1965).

*2. Juvenile in State custody.

Juvenile corrections institution employees do not qualify for appointment as guardians ad litem for detainees against whom the institution initiates criminal charges. 1970-72 Op. Atty. Gen. 98.

*3. Waiver of appointment.

Minor does not have legal capacity to waive for himself the appointment of a guardian ad litem. State v. Harris, 127 Vt. 514, 253 A.2d 147 (1969).

Where counsel of minor did not raise issue of court's failure to appoint a guardian ad litem until jury returned its verdict, minor did not waive his right to appointment of a guardian ad litem. State v. Harris, 127 Vt. 514, 253 A.2d 147 (1969).

*4. Objection of parent or guardian to appointment.

A guardian ad litem may be appointed for a child subjected to juvenile proceedings despite the existence of a parent or guardian and despite the dissent of the parent or guardian, if the interests of the child conflict with the interests of the parent or guardian. In re J.S., 139 Vt. 6, 420 A.2d 870 (1980).

Father's dissent to appointment of guardian ad litem for juvenile whom State sought to send to an institution out of the State did not render the appointment erroneous, for the dissent of the father amounted to the appearance of a conflict of interest between father and child and rendered the father's guardianship for naught in the institutionalization proceeding. In re J.S., 139 Vt. 6, 420 A.2d 870 (1980).

*5. Failure to appoint.

Where no guardian ad litem was appointed in behalf of minor, guilty verdict had to be set aside and judgment vacated. State v. Harris, 127 Vt. 514, 253 A.2d 147 (1969).

6. Legal counsel .

The Department of Corrections is not obligated to furnish legal counsel to a juvenile corrections institute detainee charged with a criminal violation committed subsequent to his placement in the institution. 1970-72 Op. Atty. Gen. 98.

*7. Summation.

In hearing resulting in order that child was unmanageable and should have her custody transferred to the State, with recommended placement, child's attorney had right of summation where legislative acts had placed juvenile proceedings in the same category as criminal offenses and provided that juveniles had the right to be defended at all stages of a proceeding, and trial court's summary denial of right of summation by attorney for juvenile required reversal. In re A.C., 134 Vt. 284, 357 A.2d 536 (1976).

Cited. In re J.G., 144 Vt. 489, 479 A.2d 153 (1984).

Annotations From Former § 5526

1. Applicability.

Use of continuance after initial disposition proceeding to evaluate the circumstances of parent and child over time was error because, in effect, family court eliminated first requirement for termination of parental rights, a substantial change in material circumstances. In re B.B., 159 Vt. 584, 621 A.2d 1270 (1993).

2. Time of hearing.

Although CHINS proceedings were unusually protracted between time when the children were taken into temporary custody and the date of the court order finding that the children in fact were in need of care and supervision, and despite the fact that a seven-month delay in the issuance of the court's decision was not explained, the delay was no basis on which to grant relief from the court's order in light of the substantiated allegation that the mother was unable to care adequately for her two children. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

Although juvenile proceedings should be resolved as quickly as is reasonably possible, the time limits established by the governing statutes are directory and not jurisdictional; underlying the statutory scheme is the goal of furthering the best interests of the children whose future is at stake. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

The time limits within which delinquency and disposition hearings are to be held are directory rather than jurisdictional requirements, so that noncompliance does not void either a disposition order or an adjudication that a child is in need of care or supervision. In re J.V., 154 Vt. 644, 573 A.2d 1196 (mem.) (1990).

Thirty-day time limit of subsection (b) of this section is only directory, so that noncompliance with it does not result in voiding either the disposition order or the CHINS adjudication. In re J.R., 153 Vt. 85, 570 A.2d 154 (1989).

Disposition order which allowed the parties to reopen the order for any reason and at any time after 30 days and to require a full dispositional hearing as if the first hearing and order never existed could not be reconciled with requirement of subsection (b) of this section that disposition hearing be no later than 30 days after merits hearing. In re R.B., 152 Vt. 415, 566 A.2d 1310 (1989), cert. denied, Appleby v. Young, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990).

3. Scope of hearing.

A child may be found to be in need of care and supervision without any inquiry into the culpability of the child's noncustodial parent; it is only at the disposition stage of the proceedings that the fitness of a noncustodial parent becomes an issue. In re B.L., 145 Vt. 586, 494 A.2d 145 (1985).

Since petitions filed by the State alleging abuse and neglect of minor children concerned only issues to be resolved at the merits hearing and rights of the children's noncustodial parents were not at issue at the merits hearing, there was no error in the petitions failing to allege that the noncustodial parents were responsible for the alleged abuse and neglect. In re B.L., 145 Vt. 586, 494 A.2d 145 (1985).

4. Burden of proof.

State has burden of proving, by a preponderance of evidence, that a child is in need of care and supervision (CHINS). In re D.T., 170 Vt. 148, 743 A.2d 1077 (1999).

At the merits stage of a CHINS proceeding, the State has the burden to establish by a preponderance of the evidence that the children in question are in need of care or supervision, i.e., that they have been abandoned or abused or are without proper parental care or subsistence necessary for their well-being. In re M.B., 158 Vt. 63, 605 A.2d 515 (1992).

State had burden of establishing that baby was without proper parental care or control, or subsistence, education, medical or other care or control necessary for its well-being in proceeding by State's Attorney alleging that infant was neglected. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

5. Degree of proof.

The State need only demonstrate that a child is in need of care and supervision by a preponderance of the evidence. In re M.B., 147 Vt. 41, 509 A.2d 1014 (1986).

The key word in provision of this section that "if the court finds that the allegations made in the petition have been established, it shall find that the child is delinquent, or neglected, or unmanageable" is the word "established," and where criminal conduct is involved it means proof beyond a reasonable doubt, consistent with constitutional requirements. In re Delinquency Proceedings, 129 Vt. 185, 274 A.2d 506 (1970).

6. Parental rights.

Where noncustodial fathers had notice of all proceedings relative to the care and custody of their minor children, and were present and represented by counsel at the disposition hearing, they were afforded notice and an opportunity to be heard at the proceedings at which their parental rights were at issue. In re B.L., 145 Vt. 586, 494 A.2d 145 (1985).

In the case of three children found to be in need of care or supervision where the termination of residual parental rights was not at issue, the juvenile court was correct in accepting a judicial admission by the father's counsel at the merits hearing, conceding that the children were in need of care or supervision, without first inquiring whether he understood the rights he relinquished and the consequences thereof, since the hearing could not, of itself, prevent the father from gaining custody and he was present when the admission were entered on his behalf. In re R.S., 143 Vt. 565, 469 A.2d 751 (1983).

A parent has a fundamental right to custody and control of his child, which can be defeated only upon a showing that the child has been abandoned or abused, or that it is without proper parental care or subsistence, education, medical, or other care necessary for its well-being. Rutherford v. Best, 139 Vt. 56, 421 A.2d 1303 (1980).

7. Appointment of guardian ad litem for parent.

Where no request was made of court which terminated mother's parental rights to have a guardian ad litem appointed for her, the court addressed an inquiry to the mother to assure itself that she understood the nature and ramifications of the proceedings, and the record revealed no evidence which would have put the court on notice that she lacked the capacity to understand the nature of the proceedings, the court had no responsibility, sua sponte, to appoint a guardian ad litem for her. In re B.L., 145 Vt. 586, 494 A.2d 145 (1985).

8. Parental unfitness.

Determination of parental unfitness which triggers transfer of custody away from parents must be made at disposition hearing, not at merits hearing. In re R.L., 148 Vt. 223, 531 A.2d 909 (1987).

9. Evidence.

Petition by Department of Social and Rehabilitation Services to transfer custody and guardianship of children to aunt and uncle was supported by more than sufficient evidence, despite evidence of marital difficulties and excess alcohol use by uncle three years prior to petition, In re T.S., 153 Vt. 533, 572 A.2d 881 (1989).

Hearsay evidence, though admissible in a disposition hearing, may not be relied upon in determining parental unfitness where a proper objection has been made. In re R.L., 148 Vt. 223, 531 A.2d 909 (1987).

Evidence concerning the appropriate disposition of children is irrelevant to the issue of whether children are in need of care and supervision, and should be excluded from the merits hearing. In re M.B., 147 Vt. 41, 509 A.2d 1014 (1986).

Testimony by father's brother and sister-in-law that they would work with the father, encouraging him to stay away from his family, to stay involved with the children to a certain extent while permitting the mother to establish an independent household, was relevant to whether the children were in need of care and supervision and should have been admitted at hearing held pursuant to this section. In re M.B., 147 Vt. 41, 509 A.2d 1014 (1986).

Where a petition was filed to declare a child to be in need of care and supervision, hearsay allegations of parental unfitness in the affidavit which accompanied the petition and in the disposition report filed by the Commissioner of Social and Rehabilitation Services, although admissible at the disposition hearing, would have been inadmissible at the merits hearing and thus could not be used as a factual basis for determining parental unfitness. In re Y.B., 143 Vt. 344, 466 A.2d 1167 (1983).

In a child neglect hearing on the merits, a psychiatric report on mother, considered by the court even though its maker is not available for cross-examination, is inadmissible hearsay, for parties to a juvenile proceeding have the right of cross-examination; but if the merits have been decided and a disposition hearing is in progress, the report is admissible. In re M.P., 133 Vt. 144, 333 A.2d 116 (1975).

Where, in finding child neglected, court relied on hearsay psychiatric report on mother, the doctor not having been available for cross-examination, and the findings other than the report did not support a conclusion of neglect, the mother did not receive full due process and order transferring all parental rights to charity organization with no adoption limitation would be reversed. In re M.P., 133 Vt. 144, 333 A.2d 116 (1975).

10. Findings.

Family court's determination that prematurely born child was in need of care and supervision (CHINS) was upheld, where court's findings as to lack of attention paid by parents to child, and their inability to attend to his special nutritional and nurturing needs, were not clearly erroneous and were supported in the record. In re D.T., 170 Vt. 148, 743 A.2d 1077 (1999).

Where the family court adopted a disposition report and plan to remove a child from the home, but failed to make written findings on the matter, the Supreme Court remanded the case because a disposition order removing a child from the parental home must be accompanied by written findings of fact. In re L.H., 165 Vt. 591, 682 A.2d 969 (mem.) (1996).

Although the trial court adjudicating juvenile delinquency is statutorily required to make finding beyond mere conclusion that juvenile is delinquent, the court need not make findings on an element not disputed at trial. In re K.B., 155 Vt. 514, 586 A.2d 552 (1990).

At hearing to adjudicate delinquency based on count of unlawful trespass, the trial court was not required to make specific finding that juvenile was on premises "without legal authority" where this element of the offense was not disputed at trial, and even if juvenile's status as personal friend of person entering premises who accompanied that friend to assist him in retrieving personal property was sufficient to give him legal authority to be on the premises, he was divested of authority by owner's request that defendant leave. In re K.B., 155 Vt. 514, 586 A.2d 552 (1990).

Trial court in juvenile delinquency proceedings is statutorily required to make findings whether or not a party makes a request, under criminal procedural rules, for special findings; the mandated findings must be more than a conclusory statement that defendant is delinquent. In re K.B., 155 Vt. 514, 586 A.2d 552 (1990).

Both merits and disposition orders must be accompanied by findings of fact which are sufficient to support court's conclusion that child is in need of care or supervision on its disposition order. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989).

In proceeding to determine if juvenile is a child in need of care of supervision, merits findings must be issued within a reasonable time. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989).

Trial court's failure to issue timely merits findings before disposition hearing and to make valid merits and disposition finding was cured where, by agreement of the parties, a new disposition hearing was held and detailed findings were issued. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989).

Merits findings which recited statutory grounds for finding a child to be in need of care or supervision and adopted by reference police officer's affidavit which only recited what the juvenile had told the officer were not sufficient to support court's conclusion that adjudged the juvenile a child in need of care of supervision. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989).

Supreme Court would not search the record for facts supporting lower court's ultimate conclusion that child was neglected. In re R.H., 138 Vt. 425, 415 A.2d 1318 (1980).

Supreme Court would not accept finding that child was without proper parental care, education, subsistence, medical care, and other care necessary for its well-being where the finding was simply a conclusion which repeated the statutory definition of a neglected child; without adequate findings Supreme Court could not determine if the facts supported the judgment in the particulars alleged in the petition and the conclusion child was neglected could not stand and order terminating all of father's residual parental rights, the father being in prison under a life sentence and the mother having relinquished all her parental rights, would be reversed. In re R.H., 138 Vt. 425, 415 A.2d 1318 (1980).

Since all constitutional guarantees associated with traditional prosecutions apply to juvenile delinquency proceedings, Supreme Court will not search the record or accept conclusionary findings which merely repeat the definition of the statute. In re R.B., 134 Vt. 368, 360 A.2d 77 (1976).

Juvenile court had the duty to state the facts which brought proceeding relating to infant allegedly neglected and suffering from injuries claimed to have been inflicted by its father within the ambit of this chapter. In re F.E.B., 133 Vt. 463, 346 A.2d 191 (1975).

In a juvenile proceeding, a finding that a child is neglected must be supported by facts stated by the court. In re P.F., 133 Vt. 64, 329 A.2d 632 (1974).

11. Stipulations.

Where, though it was stipulated that a lewd and lascivious act was performed upon the complaining witness, no other facts were stipulated, the only finding was that the alleged delinquent committed a lewd act, and the lower court judge failed to state the facts bringing the case within the ambit of statute making it a crime to commit a lewd and lascivious act on a child under the age of 16, a delinquent child being defined as one who has committed a delinquent act and such an act being defined as an act designated a crime under the laws of the State, the ultimate conclusion of delinquency could not stand; and argument that the act had been stipulated to was to no avail where the ultimate finding of delinquency and who had committed the act were disputed. In re R.B., 134 Vt. 368, 360 A.2d 77 (1976).

Where parties all stipulated that child was neglected, court did not have to make findings supporting its finding of neglect, which was based on the stipulation, and parent forfeited his right to compel the State to prove neglect where he signed the stipulation and was not deprived of due process. In re P.F., 133 Vt. 64, 329 A.2d 632 (1974).

Parties to child neglect proceeding were bound, on appeal, by stipulation concerning qualifications of social worker involved in the proceeding. In re P.F., 133 Vt. 64, 329 A.2d 632 (1974).

12. Issuance of disposition order.

Disposition order issued before valid merits decision was rendered was defective, since disposition of juvenile could be decided only after juvenile was found to be a child in need of care or supervision. In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989).

13. Habeas corpus.

Superior court had jurisdiction of writ of habeas corpus filed by mother requesting release of juvenile from detention pursuant to order under law relating to juveniles in need of care or supervision, and erroneously ruled it lacked jurisdiction on ground that proper avenue for review of the order was by appeal to supreme court, for both at time of the habeas corpus petition and the time of the hearing thereon, the juvenile was being restrained without any final adjudication of the juvenile petition. In re B.M.L. (1979) 137 Vt. 396, 406 A.2d 383, overruled, In re A.S., 152 Vt. 487, 567 A.2d 1139 (1989), cert. denied, Appleby v. Young, 493 U.S. 1087, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990).

Where provision of this section establishing the requirements for finds and an order following hearing on the merits of a juvenile petition in regard to delinquent juvenile or juvenile in need of care and supervision did not impose a time limit upon juvenile court for filing either findings or an order, the court could not continue to detain a juvenile indefinitely until such time as it filed the required findings and order, as to do so would frustrate the intent of the juvenile proceeding statute, and superior court, to which habeas corpus petition claiming unreasonable delay in issuing findings and order was brought, had duty to determine whether an unreasonable time had elapsed since the hearing on the merits and issue a writ of habeas corpus if it determined the delay was unreasonable. In re A.S., 152 Vt. 487, 567 A.2d 1139 (1989), cert. denied, Appleby v. Young, 493 U.S. 1087, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990).

14. Appeal.

Noncustodial parent lacked standing to appeal family court order dismissing petition to have her children declared children in need of services (CHINS), where neither grant nor dismissal would affect her custodial rights and the ruling neither enlarged nor diminished the legal rights of appellant. In re M.C., 156 Vt. 642, 590 A.2d 882 (mem.) (1991).

15. Review of disposition.

District court sitting as juvenile court improperly included, in disposition order in neglected child proceeding, a provision that the disposition be reviewed in six months, and the improper procedure could not be justified by either statute allowing modification of order on motion or statute allowing continuation of the disposition hearing, and the order of the review hearing transferring residual parental rights to the state would be reversed. In re A.A., 134 Vt. 41, 349 A.2d 230 (1975).

16. Jurisdiction.

The court has the authority to retain jurisdiction under § 5526 if the allegations in the petition are established as to one parent, even if the allegations have not been established as to the other parent, and the court concludes the children are either abused or lack proper parental care. In re F.P., 164 Vt. 117, 665 A.2d 597 (1995).

Cited. In re A.D.M., 140 Vt. 434, 440 A.2d 144 (1981); In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981); In re G.F., 142 Vt. 273, 455 A.2d 805 (1982); In re L.R.R., 143 Vt. 560, 469 A.2d 1173 (1983); In re J.E.G., 144 Vt. 309, 476 A.2d 130 (1984); Vermont Department of Social & Rehabilitation Services v. United States Department of Health & Human Services, 798 F.2d 57 (2d Cir. 1986); In re L.S., 147 Vt. 36, 509 A.2d 1017 (1986); In re Kirkpatrick, 147 Vt. 637, 523 A.2d 1251 (1987); In re C.W., 148 Vt. 282, 532 A.2d 566 (1987); In re A.S., 152 Vt. 487, 567 A.2d 1139 (1989), cert. denied, Appleby v. Young, 493 U.S. 1087, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990); State v. Charbonneau, 154 Vt. 373, 576 A.2d 1253 (1990); In re B.B., 159 Vt. 584, 621 A.2d 1270 (1993).

Annotations From Former § 5527

1. Applicability.

Use of continuance after initial disposition proceeding to evaluate the circumstances of parent and child over time was error because, in effect, family court eliminated first requirement for termination of parental rights, a substantial change in material circumstances. In re B.B., 159 Vt. 584, 621 A.2d 1270 (1992).

2. Construction with other laws.

Sections 633 and 667 [now §§ 5503 and 5540] of this title, which give the juvenile court exclusive jurisdiction over juveniles, and the ultimate decision as to what is in the child's best interest, clearly imply the authority of the juvenile court to reject a treatment plan proposed by the legal guardian; the requirement of this section that the Department of Social and Rehabilitation Services or Department of Corrections submit a recommended case plant to the juvenile court would be meaningless if the juvenile court had no authority to reject such recommendation. In re G.F., 142 Vt. 273, 455 A.2d 805 (1982).

District court sitting as a juvenile court improperly included, in disposition order in neglected child proceeding, a provision that the disposition be reviewed in six months, and the improper procedure could not be justified by either statute allowing modification of order on motion or statute allowing continuation of the disposition hearing, and the order of the review hearing transferring residual parental rights to the state would be reversed. In re A.A., 134 Vt. 41, 349 A.2d 230 (1975).

3. Evidence .

Hearsay evidence not admissible in a merits determination of the juvenile court may be properly admitted in termination of parental rights proceedings. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

A determination of parental unfitness may be based solely upon hearsay evidence contained in the disposition report unless the party seeking to exclude the evidence makes its objection known to the court. In re S.G., 153 Vt. 466, 571 A.2d 677 (1990).

Modification hearing under section 659(a) (now § 5532(a)) of this title is in nature of disposition hearing and hearsay evidence is admissible under subsection (d) of this section. In re C.L., 151 Vt. 480, 563 A.2d 241 (1989), cert. denied, 493 U.S. 1026, 110 S. Ct. 732, 107 L. Ed. 2d 751 (1990).

Hearsay evidence was admissible in making a disposition determination to terminate parental rights where there was credible, nonhearsay evidence of parental unfitness. In re R.B., 152 Vt. 415, 566 A.2d 1310 (1989), cert. denied, Appleby v. Young, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990).

Hearsay evidence, though admissible in a disposition hearing, may not be relied upon in determining parental unfitness where a proper objection has been made. In re R.L., 148 Vt. 223, 531 A.2d 909 (1987).

*4. Psychiatric reports.

In a child neglect hearing on the merits, a psychiatric report on mother, considered by the court even though its maker is not available for cross-examination, is inadmissible hearsay, for parties to a juvenile proceeding have the right of cross-examination; but if the merits have been decided and a disposition hearing is in progress, the report is admissible. In re M.P., 133 Vt. 144, 333 A.2d 116 (1975).

Where, in finding child neglected, court relied on hearsay psychiatric report on mother, the doctor not having been available for cross-examination, and the findings other than the report did not support a conclusion of neglect, the mother did not receive full due process and order transferring all parental rights to charity organization with no adoption limitation would be reversed. In re M.P., 133 Vt. 144, 333 A.2d 116 (1975).

*5. Disposition report.

Where disposition report was discussed in detail at disposition hearing, parents' pretrial memorandum in opposition to proposed disposition indicated that use of the report at the hearing was anticipated and its contents known in advance, and parents examined report's author at the hearing, parents did not show that they were prejudiced by the fact that the report was only filed with the court, rather than admitted into evidence pursuant to subsection (d) of this section or that court's reliance on the report was inconsistent with substantial justice. In re R.L., 148 Vt. 223, 531 A.2d 909 (1987).

*6. Disposition hearing.

Under § 5527(d) of this title, hearsay evidence is admissible in a disposition hearing, but where a timely objection is made, hearsay evidence alone may not be used as a basis for a finding of parental unfitness. In re M.B., 162 Vt. 229, 647 A.2d 1001, cert. denied, 513 U.S. 1004, 115 S. Ct. 519, 130 L. Ed. 2d 424 (1994).

*7. Social worker reports.

The trial court may obtain expert assistance by use of the report of a social worker in making the determination at the disposition hearing. In re Neglected Child, 129 Vt. 234, 276 A.2d 14 (1971).

8. Findings.

Findings of abuse and neglect are not required at disposition hearings, only at original merits hearing. In re C.L., 151 Vt. 480, 563 A.2d 241 (1989), cert. denied, 493 U.S. 1026, 110 S. Ct. 732, 107 L. Ed. 2d 751 (1990).

9. Retransfer for prosecution as adult.

Family court did not have authority, prior to a merits hearing, to transfer a juvenile marijuana-possession case back to the district court in which charges were originally filed. In re W.M., 181 Vt. 551, 915 A.2d 784 (mem.) (December 4, 2006).

Juvenile court was without jurisdiction to retransfer 16-year-old defendant to district court for prosecution as an adult on a simple assault charge, since there had been no adjudication of delinquency and simple assault charge did not fall within the list of serious offenses which could be transferred to adult. State v. Charbonneau, 154 Vt. 373, 576 A.2d 1253 (1990).

10. Transfer between courts.

Insofar as § 5527(c) of this title permits the transfer of a juvenile matter from family court to district court and trial of a juvenile defendant as an adult, following an adjudication of delinquency in the family court, that statute violates the double jeopardy protections of the Fifth Amendment of the United States Constitution. In re J.G., 161 Vt. 563, 632 A.2d 39 (mem.) (1993).

Cited. In re A.D.M., 140 Vt. 434, 440 A.2d 144 (1981); In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981); In re Y.B., 143 Vt. 344, 466 A.2d 1167 (1983); In re L.R.R., 143 Vt. 560, 469 A.2d 1173 (1983); In re J.R., 146 Vt. 185, 499 A.2d 1155 (1985); In re M.B., 147 Vt. 41, 509 A.2d 1014 (1986); In re Kirkpatrick, 147 Vt. 637, 523 A.2d 1251 (1987); In re K.M., 149 Vt. 109, 539 A.2d 549 (1987); In re J.H., 156 Vt. 66, 587 A.2d 1009 (1991); In re J.G., 160 Vt. 250, 627 A.2d 362 (1993); In re B.S., 166 Vt. 345, 693 A.2d 716 (1997).

Annotations From Former § 5528

1. Consideration of parental rights.

Social and Rehabilitation Services (SRS) did not violate parents' constitutional right to travel and did not cause conditions which necessitated termination of residual parental rights by failing to work with parents when they were out of state, since parents' voluntary move out of state conflicted with their previous commitment to stable employment and housing, regular visits with the children and attendance at counseling. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

Although this section provides the court with substantial leeway in framing a disposition order that will serve the purposes of this chapter, the court is not free to weigh and compare the merits of various possible solutions free of any regard for compelling parental rights. In re B.L., 145 Vt. 586, 494 A.2d 145 (1985).

2. Transfer of legal custody.

In a custody case, where the record illustrating a history of abuse strongly supported the conclusion that neither the father nor mother would be a suitable custodian for their juvenile son, leaving the family court to choose between granting custody to the child's grandmother or to the Department of Social and Rehabilitation Services, with placement in a foster home, the court weighed the advantages and disadvantages of each option and properly awarded custody to the child's grandmother, with whom he had a positive relationship, determining that placement with the grandmother was in the child's best interests. In re J.D., 165 Vt. 440, 685 A.2d 1095 (1996).

Upon finding child to be a CHINS, court had authority to transfer custody from mother to child's father or grandmother only if it found that individual to be qualified to receive and care for child. In re C.A., 160 Vt. 503, 630 A.2d 1292 (1993).

Where child's father was not custodial parent before CHINS proceeding, court could not transfer custody to father under provision of statute allowing court to permit child to remain with his parents. In re C.A., 160 Vt. 503, 630 A.2d 1292 (1993).

When juvenile court transfers legal custody of a child adjudicated a child in need of care and supervision, but leaves residual parental rights and responsibilities with the parents, it is error if the court fails to consider parental visitation rights consistent with the best interests of the child. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

When a court seeks to remove a child from the parental home, it may do so only upon convincing proof that the parent is an unfit parent, demonstrably incapable of providing an appropriate home for his or her child. In re L.S., 147 Vt. 36, 509 A.2d 1017 (1986).

Before a child may be removed from the parental home at the dispositional stage, there must be convincing proof and findings that the parents are unfit and demonstrably incapable of providing an appropriate home, and that separation is necessary for the child's welfare or in the interest of public safety. In re M.B., 147 Vt. 41, 509 A.2d 1014 (1986).

For a juvenile court to justify separation of a child from the parents in the dispositional phase of proceedings following a determination that the child is in need of care and supervision, it must demonstrate that the separation is necessary for the child's welfare or in the interests of public safety; to do so, the court must consider the relative merits of allowing the child to remain with the parents. In re T.L.S., 144 Vt. 536, 481 A.2d 1037 (1984).

Under subsection (a) of this section, which permits the juvenile court to transfer legal custody of a child found to be in need of care or supervision, the court is not free to weigh and compare the merits of various possible solutions free of any regard for compelling parental rights. In re Y.B., 143 Vt. 344, 466 A.2d 1167 (1983).

3. Authority of custodian.

The person to whom the immediate custody of the child was committed could usually exercise that degree of control and supervision incident to the normal and reasonable activities of the child, but the statute did not confer upon such person any right to deliver the custody of the child to another at his whim or discretion. 1946-48 Op. Atty. Gen. 376.

4. Alternative placement.

Assignment of child to school for delinquent children without, as required by statute, including in report filed with juvenile court the identification of each alternative resource which was evaluated and the reasons each was deemed inappropriate or inadequate to meet the child's needs, did not require a new hearing where evidence showed there was no appropriate alternative placement available and child could petition for change in placement upon a change in circumstances. In re R.B., 136 Vt. 466, 394 A.2d 1122 (1978).

5. Termination of parental rights.

The polestar in disposition proceedings is the best interests of the child, considering the criteria enumerated in § 5540 of this title and the most important of those statutory factors when considering termination of parental rights is the likelihood that parent will be able to resume parental duties within a reasonable time. In re B.M., 165 Vt. 194, 679 A.2d 891 (1996).

Where father had abused wife, which was a significant reason the children were placed in state custody, and where, for more than 18 months, the father did not take advantage of the services that the Department of Social and Rehabilitation Services made available to him, nor did he follow through with counseling, there was no error in terminating father's parental rights at the initial disposition of the parental termination hearing. In re B.M., 165 Vt. 194, 679 A.2d 891 (1996).

Most important issue in determining whether child's best interests require termination of parental rights is whether parents will be able to resume their parental duties within reasonable period of time; other factors court must consider include child's relationship with foster parents. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

Failure of CHINS children's foster parents to be chosen by SRS as adoptive parents in termination of residual parental rights case did not undermine court's termination decision such that reversal was warranted; termination of residual parental rights does not depend on the existence of an alternative placement. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

The juvenile court may terminate all parental rights in a proceeding to determine if a child is in need of care or supervision if the court finds by clear and convincing evidence that it is in the best interests of the child as determined by consideration of factors, the most important of which is whether the parent will be able to resume his parental duties within a reasonable time. In re G.S., 153 Vt. 651, 572 A.2d 1350 (mem.) (1990).

6. Appointment of guardian for parent.

Where no request was made of court which terminated mother's parental rights so have a guardian ad litem appointed for her, the court addressed an inquiry to the mother to assure itself that she understood the nature and ramifications of the proceedings, and the record revealed no evidence which would have put the court on notice that she lacked the capacity to understand the nature of the proceedings, the court had no responsibility, sua sponte, to appoint a guardian ad litem for her. In re B.L., 145 Vt. 586, 494 A.2d 145 (1985).

Where no guardian was appointed to protect insane parent's interest in proceeding to permanently deprive parents of custodial rights to their child, the resulting judgment would not stand. In re Colombe, 131 Vt. 21, 298 A.2d 820 (1972).

7. Evidence.

Before a court may take action in contravention of a parent's right to relate to his or her child free from governmental intervention, it must have convincing proof that he or she is an unfit parent demonstrably incapable of providing an appropriate home for his or her child. In re B.L., 145 Vt. 586, 494 A.2d 145 (1985).

In a child neglect hearing on the merits, a psychiatric report on mother, considered by the court even though its maker is not available for cross-examination, is inadmissible hearsay, for parties to a juvenile proceeding have the right of cross-examination; but if the merits have been decided and a disposition hearing is in progress, the report is admissible. In re M.P., 133 Vt. 144, 333 A.2d 116 (1975).

Where, in finding child neglected, court relied on hearsay psychiatric report on mother, the doctor not having been available for cross-examination, and the findings other than the report did not support a conclusion of neglect, the mother did not receive full due process and order transferring all parental rights to charity organization with no adoption limitation would be reversed. In re M.P., 133 Vt. 144, 333 A.2d 116 (1975).

Social worker's report and recommendations constituted adequate evidence to support disposition order in neglected child proceeding and it could not be successfully claimed the order was invalid for lack of expert evidence. In re P.F., 133 Vt. 64, 329 A.2d 632 (1974).

8. Findings.

Disposition order transferring custody of child to the Commissioner of Social and Rehabilitation Services could not stand in the absence of findings that the child's parents were unfit and demonstrably incapable of providing an appropriate home, and that separation was necessary for the child's welfare or in the interest of public safety. In re R.M., 150 Vt. 59, 549 A.2d 1050 (1988).

Because of the bifurcated nature of juvenile proceedings, the use of the merits findings to justify a disposition order transferring legal custody is inappropriate. In re L.S., 147 Vt. 36, 509 A.2d 1017 (1986).

9. Temporary orders.

Disposition order which allowed the parties to reopen the order for any reason and any time after 30 days and required a full dispositional hearing as if the first hearing and order never existed was not consistent with the court's duty to order disposition "most suited to the protection and physical, mental and moral welfare of the child" under subsection (a) of this section, and was therefore invalid. In re R.B., 152 Vt. 415, 566 A.2d 1310 (1989), cert. denied, Appleby v. Young, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990).

10. Review of disposition.

District court sitting as a juvenile court improperly included, in disposition order in neglected child proceeding, a provision that the disposition be reviewed in six months, and the improper procedure could not be justified by either statute allowing modification of order on motion or statute allowing continuation of the disposition hearing, and the order of the review hearing transferring residual parental rights to the state would be reversed. In re A.A., 134 Vt. 41, 349 A.2d 230 (1975).

11. Jurisdiction of court.

A juvenile court did not lose its jurisdiction over its wards by their commission to the Department of Social Welfare, an individual, or any other State institution, but retained authority until such wards reached their majority to make sure future modifications of its orders relating to them as the ward's interest and changing conditions might indicate were advisable. 1952-54 Op. Atty. Gen. 341.

The court retained jurisdiction to make such further orders in the interest of the child as future conditions might require and such further orders were properly required by the court before a private person or charity was permitted to place such child elsewhere. 1946-48 Op. Atty. Gen. 376.

When parents' custody of child had been taken from them by proceedings in juvenile court, custody remained according to order of that court notwithstanding subsequent disposition of child in divorce proceedings by county court, which only determined matter of custody as between parents. 1930-32 Op. Atty. Gen. 305.

12. Powers of court.

In determining initial custody, the family court is not obligated to accept the recommendation contained in the Department of Social and Rehabilitation Services' disposition report. In re J.D., 165 Vt. 440, 685 A.2d 1095 (1996).

13. Best interests of the child.

Family court's decision to transfer custody of child to SRS was supported by father's history of removing child from residential treatment and father's continued commitment to a home placement; because interruption in treatment would be detrimental to child, transfer of custody to SRS was necessary for best interests of child. In re J.T.S., 169 Vt. 620, 733 A.2d 86 (mem.) (1999).

§ 5540 of this title (best interests of the child) does not require that children of the same mother be kept together; thus, there is no reason why the question does not fall within the "substantial leeway" accorded the trial court in framing a disposition order. In re B.M., 165 Vt. 194, 679 A.2d 891 (1996).

Cited. In re G.F., 142 Vt. 273, 455 A.2d 805 (1982); In re L.R.R., 143 Vt. 560, 469 A.2d 1173 (1983); In re R.S., 143 Vt. 565, 469 A.2d 751 (1983); Vermont Department of Social & Rehabilitation Services v. United States Department of Health & Human Services, 798 F.2d 57 (2d Cir. 1986); In re R. L., 148 Vt. 223, 531 A.2d 909 (1987); In re C.W., 148 Vt. 282, 532 A.2d 566 (1987); In re L.T., 149 Vt. 473, 545 A.2d 522 (1988); In re A.S., 152 Vt. 487, 567 A.2d 1139 (1989), cert. denied, Appleby v. Young, 493 U.S. 1087, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990); In re J.R., 153 Vt. 85, 570 A.2d 154 (1989); In re M.C.P., 153 Vt. 275, 571 A.2d 627 (1989); In re J.S., 153 Vt. 365, 571 A.2d 658 (1989); In re A.S., 157 Vt. 487, 599 A.2d 736 (1991); In re B.C., 169 Vt. 1, 726 A.2d 45 (1999); In re L.B., 169 Vt. 552, 725 A.2d 935 (mem.) (1999); In re G.T., 170 Vt. 507, 758 A.2d 301 (2000); Sorge v. State, 171 Vt. 171, 762 A.2d 816 (2000); In re A.S., 171 Vt. 599, 762 A.2d 830 (mem.) (2000).

Law review. Judicial discretion in cases involving children in need of care or supervision, see 8 Vt. L. Rev. 119 (1983).

Annotations From Former § 5529

1. Construction.

Family court could, in context of delinquency proceeding, place child under protective supervision, subject to conditions, but court had no authority to transfer custody of child to grandparent in context of delinquency. In re L.B., 169 Vt. 552, 725 A.2d 935 (mem.) (1999).

2. Discretion of court.

Subdivision (a)(2) of this section grants the juvenile court broad discretion in establishing the terms and conditions of probation for a delinquent child; absent an abuses of discretion, its order must stand. In re T.S., 144 Vt. 592, 481 A.2d 21 (1984).

Cited. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981); In re S.H., 141 Vt. 278, 448 A.2d 148 (1982); In re G.F., 142 Vt. 273, 455 A.2d 805 (1982); In re L.R.R., 143 Vt. 560, 469 A.2d 1173 (1983); In re J.E.G., 144 Vt. 309, 476 A.2d 130 (1984); In re J.G., 144 Vt. 489, 479 A.2d 153 (1984); In re G.T., 170 Vt. 507, 758 A.2d 301 (2000); Sorge v. State, 171 Vt. 171, 762 A.2d 816 (2000).

Annotations From Former § 5531

1. Construction with other laws.

In making a permanency-plan determination under this section, the court must consider the best interests of the child under the factors enumerated under § 5540 of this title. In re L.S., 172 Vt. 549, 772 A.2d 1077 (mem.) (2001).

This section does not satisfy requirement of 42 U.S.C. § 675(C)(5) that in order to be eligible for certain federal foster care funds dispositional hearings must be held periodically for all foster care children, since this section does not require disposition review for children whose parents have had their parental rights terminated, even if such a child remains in foster care after termination. Vermont Department of Social & Rehabilitation Services v. United States Department of Health & Human Services, 798 F.2d 57 (2d Cir. 1986), cert. denied, 479 U.S. 1064, 107 S. Ct. 950, 93 L. Ed. 2d 999 (1987).

District court sitting as a juvenile court improperly included, in disposition order in neglected child proceeding, a provision that the disposition be reviewed in six months, and the improper procedure could not be justified by either statute allowing modification of order on motion or statute allowing continuation of the disposition hearing, and the order of the review hearing transferring residual parental rights to the State would be reversed. In re A.A., 134 Vt. 41, 349 A.2d 230 (1975).

2. Change of placement.

Department of Social and Rehabilitation Services can change placement of a child in its custody without resort to juvenile court; 18-month review of child's disposition adequately protects liberty interest of parent and child implicated by a change of placement and satisfies procedural due process requirements of the Vermont and United States Constitutions. In re J.S., 153 Vt. 365, 571 A.2d 658 (1989).

3. Burden of proof.

At a permanency hearing under this section, the party seeking to modify the previous disposition order has the burden of showing changed circumstances. In re L.S., 172 Vt. 549, 772 A.2d 1077 (mem.) (2001).

Where Social and Rehabilitation Services (SRS) sought to modify a previous disposition order, which transferred custody to SRS and accepted and approved a case plan with a goal of reunification with mother, SRS had the burden of showing changed circumstances and showing that a modification of the order was in the best interests of the children, and, thus, the family court erred by placing the burden of showing changed circumstances upon mother when SRS sought to change the case plan goal to long-term foster care. In re L.S., 172 Vt. 549, 772 A.2d 1077 (mem.) (2001).

Subsection (d) of this section indicates that long-term foster care is the least favorable placement, thus, Social and Rehabilitation Services had the burden first of showing changed circumstances and then of showing a compelling reason why it is not in the best interest of children to return to their mother or to have residual parental rights terminated. In re L.S., 172 Vt. 549, 772 A.2d 1077 (mem.) (2001).

It is well settled that the family court must conduct a two-step analysis whenever it considers modifying an existing disposition order relative to termination of residual parental rights: (1) the court must find a substantial change in material circumstances and, (2) if a substantial change in material circumstances is established, the court then must determine whether the best interests of the children require termination; this analysis is required whether the court is considering a modification during a dispositional review or during a hearing on a motion to modify disposition. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

In determining whether to terminate residual parental rights, a substantial change in material circumstances is most often found when a parent's ability to care properly for a child has either stagnated or deteriorated over the passage of time; although stagnation may be found when the parent has made no improvement over time, some improvement will not preclude a finding that the parent's capacity to care for the child has, indeed, stagnated. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

In evaluating a parent's parenting skills over time in order to determine whether residual parental rights should be terminated, the central question is whether the improvement in parenting substantially conformed with the expectations at the time of the children in need of care and supervision adjudication and with Social and Rehabilitation Services' case plan; if the parent's progress meets the expectations, there is no change of circumstances, but if the improvement does not substantially conform with the established expectations, then the court may find a change of circumstances and proceed to the second prong of the inquiry - whether termination is in the children's best interests. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

In any termination of parental rights proceeding, the family court must examine the circumstances of each parent individually. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

In termination of parental rights proceeding, it was error for the family court to decline addressing mother's circumstances because, although one parent's improvement may prevent the court from finding a substantial change in material circumstances, the other parent's capacity may have stagnated or deteriorated, thus meeting the change-of-circumstances test and requiring a further inquiry into the best interests of the child. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

At statutorily mandated 18-month reviews of disposition orders in which minors are determined to be in need of care or supervision (CHINS), the proponent of any modification in the disposition bears the burden to show that it is warranted by changed circumstances. In re J.H., 156 Vt. 66, 587 A.2d 1009 (1991).

At 18-month review hearing pursuant to disposition order placing child in need of care or supervision (CHINS) in custody of the Department of Social and Rehabilitation Services (SRS) in which mother who had originally stipulated to SRS custody now sought custody of the child, the trial court erred in allocating to SRS the burden of demonstrating parental unfitness, and remand was required for determination of whether parent met burden to show changed circumstances warranting modification of the disposition. In re J.H., 156 Vt. 66, 587 A.2d 1009 (1991).

4. Termination of residual parental rights.

A two-step analysis is required in determining whether to terminate residual parental rights: first, to modify an existing disposition order, the court must find that changed circumstances so require in the best interest of the child, and the proponent of the modification must show the change to be a substantial change in material circumstances so as to warrant modification; second, the court must determine whether the best interests of the child, as set forth by statute, require that all parental rights and responsibilities be terminated. In re M.M., 159 Vt. 517, 621 A.2d 1276 (1993).

Court can consider termination of residual parental rights at a review proceeding under this section. In re J.R., 153 Vt. 85, 570 A.2d 154 (1989).

Court considering termination of residual parental rights at a review proceeding under this section must find a substantial change in material circumstances, and must find that best interests of child requires termination. In re J.R., 153 Vt. 85, 570 A.2d 154 (1989).

Clear and convincing evidence supported termination of residual parental rights at a review proceeding under this section, based on passage of time with no improvement in parental capacity, i.e., stagnation, that had occurred since disposition order. In re J.R., 153 Vt. 85, 570 A.2d 154 (1989).

5. Evidence.

Hearsay evidence not admissible in a merits determination of the juvenile court may be properly admitted in termination of parental rights proceedings. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

6. Custody of person over age 18.

Language in this section providing that custody orders shall not remain in force "beyond minority of child" did not control, where this section, and amendment process, contained obvious clerical oversights, legislative purpose was to broaden control over young offenders over the age of 18, and holding otherwise would give this section meaning not intended; as such, this section allowed Commissioner of Social and Rehabilitation Services to retain custody of juvenile until his 21st birthday. In re C.S., 158 Vt. 339, 609 A.2d 641 (1992).

7. Mandatory 18-month review.

Appeal of decision regarding termination of residual parental rights does not obviate the need for the § 5531 review mandated by the Legislature to take place every 18 months. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

8. Disposition review.

Family court had no authority to order another disposition review to be conducted after three months, as this provision was contrary to statute. In re T.L., 169 Vt. 550, 726 A.2d 496 (mem.) (1999).

9. Planned permanent living arrangement.

This section governing permanency hearings plainly reflects that a "planned permanent living arrangement" is the least desirable alternative to the various dispositions available for children in the State's custody. In re A.S. & K.S., 171 Vt. 369, 764 A.2d 1188 (2000).

10. Long-term foster care .

Where the court determined that, without mother's cooperation concerning her treatment and employment, and considering the child's desire to have no contact with mother after a particular visit, it properly concluded that the only option that would provide the child with a stable living situation and not permanently sever her bonds with mother was long-term foster care recommended in the Department of Social and Rehabilitation Services report. In re A.G., 178 Vt. 7, 868 A.2d 692 (December 23, 2004).

Cited. In re G.F., 142 Vt. 273, 455 A.2d 805 (1982); In re C.W., 148 Vt. 282, 532 A.2d 566 (1987); In re L.T., 149 Vt. 473, 545 A.2d 522 (1988); In re C.L., 151 Vt. 480, 563 A.2d 241 (1989); In re A.K., 153 Vt. 462, 571 A.2d 75 (1990); In re H.A., 153 Vt. 504, 572 A.2d 884, cert. denied, 498 U.S. 861, 111 S. Ct. 166, 112 L. Ed. 2d 131 (1990); In re T.S., 153 Vt. 533, 572 A.2d 881 (1989); In re A.S., 157 Vt. 487, 599 A.2d 736 (1991); In re K.M., 158 Vt. 114, 604 A.2d 788 (1992); In re J.M., 160 Vt. 146, 624 A.2d 362 (1993); In re C.A., 160 Vt. 503, 630 A.2d 1292 (1993); In re A.O., 161 Vt. 302, 640 A.2d 537 (1994).

Annotations From Former § 5532

1. Due process.

Although due process requires imposition of clear and convincing evidence standard where State seeks termination of parental rights, proof by a preponderance of the evidence is sufficient to show that there has been a substantial change in circumstances and that the best interests of the child warrant amendment, modification, or vacation of a termination order, unless there has been an intervening adoption of the child, bringing into picture new set of parents whose due process rights must be considered. In re T.E., 155 Vt. 172, 582 A.2d 160 (1990).

2. Construction with other laws.

District court sitting as a juvenile court improperly included, in disposition order in neglected child proceeding, a provision that the disposition be reviewed in six months, and the improper procedure could not be justified by either § 659 [now § 5532] of this title, allowing modification of order on motion, or § 655 [now § 5527] of this title, allowing continuation of the disposition hearing, and the order of the review hearing transferring residual parental rights to the State would be reversed. In re A.A., 134 Vt. 41, 349 A.2d 230 (1975).

3. Jurisdiction.

Where Deputy State's Attorney did not file her appointment and oath with county clerk as required by statute she could not justify her acts as such in any suit to which she was a party, but she was a de facto officer, and not a party to proceeding for termination of parental rights in children, and petition she signed was sufficient to confer jurisdiction upon the court. In re A.A., 134 Vt. 41, 349 A.2d 230 (1975); In re G.V., 136 Vt. 499, 394 A.2d 1126 (1978).

4. Changed circumstances.

Where the plan of the Department for Children and Families was not working for the juvenile, and something had to be done to ensure that he received the services he needs, the juvenile's lack of progress in meeting the case plan's goals supported the court's findings that the statutorily required change of circumstances had occurred since the original disposition order. In re J.M., 178 Vt. 591, 878 A.2d 293 (mem.) (June 9, 2005).

Clear and convincing evidence supported family court's finding of substantial change in material circumstances based on mother's stagnation, as well as court's determination that terminating mother's parental rights was in children's best interest. In re A.W., 167 Vt. 601, 708 A.2d 910 (mem.) (1998).

A child disposition order may be modified at any time on petition of a party, or on the court's own initiative, on the ground that changed circumstances so require in the best interests of the child. In re B.B., 159 Vt. 584, 621 A.2d 1270 (1993).

A substantial change in material circumstances warranting termination of parental rights is most often found when the parent's ability to care properly for the child has either stagnated or deteriorated; stagnation can be shown by the passage of time with no improvement in parental capacity to care properly for the child. In re J.M., 160 Vt. 146, 624 A.2d 362 (1993).

When the State seeks modification of a juvenile case plan, the court may find a substantial change in material circumstances based on "stagnation." In re S.R., 157 Vt. 417, 599 A.2d 364 (1991).

At modification of parental rights hearing, consideration of the preadoptive home did not violate father's fundamental right to care for his juvenile daughter in the context of the family since court first found a change in material circumstances based on stagnation of the parents' ability to properly care for juvenile, and only then did court consider the relationship between juvenile and her foster parents, a factor which State statute requires court to consider, in determining whether modification was in the best interest of juvenile. In re S.R., 157 Vt. 417, 599 A.2d 364 (1991).

Mother's lack of progress with substance abuse counseling and deterioration of her condition constituted changed circumstances sufficient to support modification of disposition order under this section and transfer of residual parental rights to Department of Social and Rehabilitation Services without limitation as to adoption. In re C.L., 151 Vt. 480, 563 A.2d 241 (1989), cert. denied, 493 U.S. 1026, 110 S. Ct. 732, 107 L. Ed. 2d 751 (1990).

Where serious, life threatening injuries have been inflicted upon one child, the juvenile court will not be required to wait until further injuries are inflicted upon its sibling, previously also a victim of child abuse, in order to conclude that a substantial change in material circumstances has occurred as to that sibling and modify a disposition order pursuant to subsection (a) of this section. In re D.P., 147 Vt. 26, 510 A.2d 967 (1986).

In determining whether there were grounds to modify previous order regarding children in need of care and supervision, court could use time period prior to previous order in conjunction with time period after it to decide whether there was the requisite change of circumstances since the previous order: In re G.V., 136 Vt. 499, 394 A.2d 1126 (1978).

In proceeding to modify order placing two children in need of care and supervision in custody of the State, seeking transfer of residual parental rights to the State, court was justified in finding changed circumstances and granting the transfer where there was a pattern of such severe and constant family instability that it could be said to come within the ambit of stagnation coupled with a prospective inability for improvement, consisting, inter alia, of a five-child family, unemployed father, lack of stability and tranquility in the home, unwillingness of parents to provide the two children's basic needs, four separations and reconciliations of the parents, a moving of the family twice, lack of success by agencies attempting to help, and parents unwilling to change their destructive relationship. In re G.V., 136 Vt. 499, 394 A.2d 1126 (1978).

To establish a substantial change in material circumstances, which along with showing that the modification will be in the best interests of the child are the requirements for modification of an existing juvenile court order and taking a child away from its parents for lack of proper care and supervision, it must be shown that there has been deterioration in the living circumstances of the parents, who have the obligation to correct the circumstances, or that there exists stagnation coupled with a prospective inability for improvement. In re G.V., 136 Vt. 499, 394 A.2d 1126 (1978).

On petition to modify disposition order which placed legal custody of child in Commissioner of Social and Rehabilitation Services, factors relied upon by the father in his contention that he was the person most suited to have custody of the child, either were not changes from the time of the disposition order; or, if they were changes, they did not rise to being substantial changes in material circumstances. In re R.F., 135 Vt. 275, 376 A.2d 38 (1977).

Change in the child's placement, unlike a change in legal custody, is not sufficient, standing alone, to warrant modification of court's disposition order. In re R.F., 135 Vt. 275, 376 A.2d 38 (1977).

Contention that requisite change in material circumstances occurred when Commissioner of Social and Rehabilitation Services changed placement of child from child's mother to foster home, while of practical import, had minimal legal significance for purposes of father's petition seeking modification of disposition order placing child in legal custody of Commissioner. In re R.F., 135 Vt. 275, 376 A.2d 38 (1977).

Where record indicated that father was visiting his child four to six times a week from time of disposition order placing child in custody or Commissioner of Social and Rehabilitation Services to time of petition for modification, substantial change in material circumstances was not necessarily established. In re R.F., 135 Vt. 275, 376 A.2d 38 (1977).

Change of circumstances necessary before a court order regarding a juvenile may be modified must be a substantial change in material circumstances. In re J.&J.W., 134 Vt. 480, 365 A.2d 521 (1976).

That mother whose children had three years earlier been committed to the care and custody of the State had not improved in the psychological condition which was in part the reason for the commitment, and that the children did not have a psychological mother-child relationship with her, was not grounds for terminating her parental rights on ground of changed circumstances. In re J.&J.W., 134 Vt. 480, 365 A.2d 521 (1976).

That primary psychological relationship of children committed to care and custody of the State laid with person other than the mother and the psychological parent-child relationship had been lost was not, standing alone, ground for terminating parental rights on ground of substantial change in material circumstances. In re J.&J.W., 134 Vt. 480, 365 A.2d 521 (1976).

Where mother's psychological unpreparedness to care for children had continued for the three years since they had been placed in State's care and custody, but she visited the children as often as the State allowed, had established a stable marriage, prepared accommodations for anticipated long visits by the children, continued a regular medical treatment plan, and was employed part-time in a position which in part involved supervision of children, any apparent change was in favor of improved parental circumstances, not one showing stagnation. In re J.&J.W., 134 Vt. 480, 365 A.2d 521 (1976).

Where custody and guardianship of three children had been transferred from mother to the State upon a finding that she was deficient in the necessary abilities to cope with parental duties and could not provide the stimulation, understanding, and judgment necessary to care for her children, fact that there was no improvement in the next three years in her parental ability and capacity was grounds for modifying the original order on the basis of a change of circumstances and transferring the mother's residual parental rights and responsibilities to the state. In re Certain Neglected Children, 134 Vt. 74, 349 A.2d 228 (1975).

5. Termination of parental rights.

A termination petition does not commence an entirely new proceeding because there is a child in need of care or supervision (CHINS) proceeding pending, and therefore the original process demanding the appearance of the parents is not necessary. Once a CHINS proceeding has commenced, and the parties have been made aware of the proceeding and have either obtained, or had an opportunity to obtain counsel, it is no longer necessary to issue original process, including a summons, requiring their presence and advising them to obtain counsel. In re M.T., 180 Vt. 643, 912 A.2d 456 (mem.) (November 7, 2006).

Subsection (a) of this section and §§ 5519-5520 of this title require the family court to provide direct notice of a pending termination petition and hearing to the parents of children who are the subject of the petition, in addition to the parents' attorneys. Because that was not done, a termination order was required to be reversed and the matter remanded for further proceedings. In re M.T., 180 Vt. 643, 912 A.2d 456 (mem.) (November 7, 2006).

Trial court did not improperly allow the Department of Social and Rehabilitation Services to recommend termination of mother's parental rights in alleged violation of an oral agreement under which she admitted her child was a child in need of care or supervision. Whether or not this agreement was violated, it was subject to modification for changed circumstances. Agreements involving the interests of children are subject to the overriding supervision of the family court to protect the children's interests. In re B.S., 166 Vt. 345, 693 A.2d 716 (1997).

When a court considers terminating parental rights under § 5532(a) of this title it must conduct a two-step analysis: first, the court must find whether there has been a substantial change in material circumstances; second, it must decide whether the best interests of the child require termination of parental rights. In re Cr. M., 163 Vt. 542, 659 A.2d 1159 (1995).

A substantial change in material circumstances warranting termination of parental rights is most often found when the parent's ability to care properly for the child has either stagnated or deteriorated over the passage of time, stagnation being shown by the passage of time with no improvement in parental capacity to care properly for the child. In re Cr. M., 163 Vt. 542, 659 A.2d 1159 (1995).

If the court decides to terminate parental rights, its findings must be supported by clear and convincing evidence, and if so supported they will withstand review in the Supreme Court unless they are clearly erroneous. In re Cr. M., 163 Vt. 542, 659 A.2d 1159 (1995).

Mother's argument that Social and Rehabilitation Services (SRS) case plan did not address her needs as a battered woman was without merit where there was strong support in the record that SRS's case plans recognized the mother's victimization, attempted to safeguard her rights, and maximized her chances of resuming the parental role in that they provided for SRS support and monitoring, ongoing medical exams, individual and family mental health counseling, and assistance from a local family services agency, including temporary housing and abuse counseling and where the record also indicated that SRS responded immediately to the mother's changing needs following an August 1992 battering episode and supported her recovery efforts through the fall. In re Cr. M., 163 Vt. 542, 659 A.2d 1159 (1995).

In a proceeding to terminate parental rights, the court's conclusion that there was a substantial change in circumstances based on stagnation was not erroneous where the court found that the mother had been abused in the past, had renounced the abuse, had been unable to protect herself from her husband's violent behavior, and had been unwilling to seek assistance; that neither parent had been willing to accept homemaking or child care services, and that neither parent was willing to accept employment counseling; and that the mother's progress was hindered by her recurring psychotic episodes and an untreated mental disorder. In re Cr. M., 163 Vt. 542, 659 A.2d 1159 (1995).

Mother could not challenge family court's decision to terminate parental rights by assigning primary blame for the family's dysfunction to the father since, even if one parent contributes more to the family's breakdown than the other parent, the controlling standard under 33 V.S.A. § 5532(a) is the best interests of the child, not the fault of the parent. In re Cr. M., 163 Vt. 542, 659 A.2d 1159 (1995).

Notwithstanding father's argument to the contrary, family court did not have a duty under 33 V.S.A. § 5532(a) to treat the issue of visitation separately from the issue of termination of parental rights and responsibilities and to make a separate finding by clear and convincing evidence that visitation should be denied since visitation is a residual parental right and the termination of such rights necessarily eliminates the parent's right to visit the child. In re Cr. M., 163 Vt. 542, 659 A.2d 1159 (1995).

When termination of parental rights is sought, § 5532(a) of this title requires the court to conduct a two-step analysis: first, the court must find that there has been a substantial change in material circumstances; and second, the court must find that the best interests of the juvenile require termination of parental rights; such findings must be supported by clear and convincing evidence and will withstand review unless they are clearly erroneous. In re B.W., 162 Vt. 287, 648 A.2d 652 (1994).

Termination of parental rights at a modification proceeding requires a two-step analysis; the court must find a substantial change in material circumstances warranting modification, and that the best interests of the juvenile requires termination of parental rights. In re J.M., 160 Vt. 146, 624 A.2d 362 (1993).

In a proceeding to terminate parental rights, trial court first must conclude that a substantial change in material circumstances has occurred; if this threshold criterion is met, court then determines whether termination of parental rights is in the best interest of the child. In re H.S., 161 Vt. 83, 632 A.2d 1106 (1993).

When termination of parental rights is sought at a modification proceeding, the court must conduct a two-step analysis: first the court must find a substantial change in material circumstances; second the court must find that the best interests of the juvenile require termination of parental rights. In re S.R., 157 Vt. 417, 599 A.2d 364 (1991).

Proper standard of proof on motion to modify or vacate an order to terminate parental rights is preponderance of the evidence. In re T.E., 155 Vt. 172, 582 A.2d 160 (1990).

Decision of trial court denying mother's motion to modify and vacate order terminating parental rights would stand; any error by trial court in applying standard of clear and convincing evidence in lieu of preponderance of the evidence standard was harmless where evidence supported denial of motions under either standard. In re T.E., 155 Vt. 172, 582 A.2d 160 (1990).

A juvenile court considering a petition for modification of a disposition order, wherein the Department of Social and Rehabilitation Services is seeking custody without limitations as to adoption, must consider the legislative criteria set forth in section 667 [now § 5540] of this title for determining the child's best interest. In re J.J., 143 Vt. 1, 458 A.2d 1129 (1983).

Subsection (a) of this section applies to all orders, including those that terminate residual parental rights. In re J.H., 144 Vt. 1, 470 A.2d 1182 (1983).

Where the juvenile court dismissed a motion for relief from prior court orders which had terminated parental rights on the basis of its finding that in a petition to modify the orders also filed by the parents they had argued that there was no mistake or fraud in the orders, since the language relied on by the court did not come from the petition to modify but rather from counsel's supporting memorandum discussing the motion for relief, the parents, in their accompanying affidavit, stated that they had 'felt pressured' when they relinquished their rights, the children were residing in foster care and no adoption proceedings had been commenced on their behalf, the dismissal of the motion would be reversed. In re J.H., 144 Vt. 1, 470 A.2d 1182 (1983).

When reviewing causes in which termination of residual parental rights in children is sought, whether the proceedings be original or for modification of a prior order, Supreme Court will proceed with great caution, in view of the awesome power involved and the concern expressed by the Legislature in the preservation of the family unit. In re G.V., 136 Vt. 499, 394 A.2d 1126 (1978).

If parental rights over a neglected child were to be terminated subsequent to custody of child having been placed in the Commissioner of Social Welfare, the parental condition either must have deteriorated or must have been stagnant with a prospective inability for improvement and where the parental condition had improved, severance of rights was in error. In re J.A.S., 135 Vt. 243, 373 A.2d 558 (1977).

6. Guardian ad litem.

A person seeking recognition as a guardian ad litem on the ground that the interests of the child conflict with the interests of his parents or guardian may seek relief under this section. In re J.S., 139 Vt. 6, 420 A.2d 870 (1980).

7. Pleadings.

Where this section required that petition for modification of a juvenile court order set out grounds upon which the modification is sought, and rather than setting grounds out in petition, petitioner included them in a supplemental report filed with or near in time to the petition, juvenile's mother, who contested the modification, was not prejudiced. In re T.M., 138 Vt. 427, 415 A.2d 1330 (1980).

Petition stating that State wished modification of order transferring custody and guardianship of children to State because it was desirous of placing the children for adoption complied with this section requiring petition to concisely state the grounds for the requested relief. In re Certain Neglected Children, 134 Vt. 74, 349 A.2d 228 (1975).

8. Burden of proof.

Where Social and Rehabilitation Services (SRS) sought to modify a previous disposition order, which transferred custody to SRS and accepted and approved a case plan with a goal of reunification with mother, SRS had the burden of showing changed circumstances and showing that a modification of the order was in the best interests of the children, and, thus, the family court erred by placing the burden of showing changed circumstances upon mother when SRS sought to change the case plan goal to long-term foster care. In re L.S., 172 Vt. 549, 772 A.2d 1077 (mem.) (2001).

At 18-month review hearing pursuant to disposition order placing child in need of care or supervision (CHINS) in custody of the Department of Social and Rehabilitation Services (SRS) in which mother who had originally stipulated to SRS custody now sought custody of the child, the trial court erred in allocating to SRS the burden of demonstrating parental unfitness, and remand was required for determination of whether parent met burden to show changed circumstances warranting modification of the disposition. In re J.H., 156 Vt. 66, 587 A.2d 1009 (1991).

In hearing in which finding that child was unmanageable and should have her custody transferred to the State, with recommended placement, was reviewed, court's ruling that the mother, as the moving party, should present her case first, did not place the burden of proof on the mother and it could not be successfully claimed that the court erroneously assigned the mother the burden of proof. In re A.C., 134 Vt. 284, 357 A.2d 536 (1976).

9. Standard of proof.

In a proceeding to terminate parental rights under §§ 5532 and 5540 of this title, a higher burden of proof must be met than in a child in need of care and supervision hearing so that the State must prove by clear and convincing evidence that there has been a material change in circumstances and that the best interest of the child requires termination of parental rights and responsibilities. In re J.R., 164 Vt. 267, 668 A.2d 670 (1995).

10. Evidence.

In termination of parental rights at modification proceeding, court's conclusion that father was incapable of properly caring for his juvenile daughter was supported by credible evidence where court found that father's alcohol problem, including frequent arguments and occasional separations, and father's failure to acknowledge juvenile mother's Munchausen syndrome by proxy posed a direct threat to the health and safety of juvenile, and that that resulting stress had a negative impact of the juvenile; additionally, court's finding of lack of safety in the home and lack of parental ability to care properly for juvenile were equally attributable to the father and the mother. In re S.R., 157 Vt. 417, 599 A.2d 364 (1991).

Hearsay evidence not admissible in a merits determination of the juvenile court may be properly admitted in termination of parental rights proceedings. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

Modification hearing under subsection (a) of this section is in nature of disposition hearing and hearsay evidence is admissible under section 655(d) [now § 5527(d)] of this title. In re C.L., 151 Vt. 480, 563 A.2d 241 (1989), cert. denied, 493 U.S. 1026, 110 S. Ct. 732, 107 L. Ed. 2d 751 (1990).

At hearing on modification of disposition order; failure to introduce Department of Social and Rehabilitation Services case plan formally into evidence does not necessarily preclude its use where such use was anticipated and its contents were known in advance, especially in absence of objection at hearing. In re C.L., 151 Vt. 480, 563 A.2d 241 (1989), cert. denied, 493 U.S. 1026, 110 S. Ct. 732, 107 L. Ed. 2d 751 (1990).

11. Findings.

Findings of abuse and neglect are not required at hearing in which modification of disposition order is requested. In re C.L., 151 Vt. 480, 563 A.2d 241 (1989), cert. denied, 493 U.S. 1026, 110 S. Ct. 732, 107 L. Ed. 2d 751 (1990).

12. Discretion.

A juvenile court, in passing upon a petition for modification of disposition order placing child in custody of Commissioner of Social and Rehabilitation Services, is called upon to exercise sound judicial discretion and its decision is not to be set aside unless there has been a showing that the discretion of the court was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. In re R.F., 135 Vt. 275, 376 A.2d 38 (1977).

13. Review.

Court reviewing termination of parental rights resulting from a modification proceeding will uphold lower court's findings if supported by clear and convincing evidence, and its conclusions of law if supported by the findings. In re A.W., 167 Vt. 601, 708 A.2d 910 (mem.) (1998).

Findings of family court in a modification proceeding to terminate parental rights will withstand review unless clearly erroneous. In re J.M., 160 Vt. 146, 624 A.2d 362 (1993).

In termination of parental rights proceedings, court's findings must be supported by clear and convincing evidence, and such findings will withstand review unless clearly erroneous. In re S.R., 157 Vt. 417, 599 A.2d 364 (1991).

Legal considerations governing review of disposition orders are distinct and apart from those governing review of petitions to modify for changed circumstances. In re R.F., 135 Vt. 275, 376 A.2d 38 (1977).

14. Postjudgment motions.

Appellant's claim that his second postjudgment motion seeking a termination hearing was actually a motion for a new trial because of ineffective assistance of counsel is inadequate; appellant was required to set forth in concise language the grounds upon which the relief is requested and his motion never stated that ineffective assistance of counsel was a ground for relief. In re A.C., 161 Vt. 622, 641 A.2d 99 (mem.) (1993).

15. Disposition review.

Family court had no authority to order another disposition review to be conducted after three months, as this provision was contrary to statute. In re T.L., 169 Vt. 550, 726 A.2d 496 (mem.) (1999).

Cited. Vermont Department of Social & Rehabilitation Services v. United States Department of Health & Human Services, 798 F.2d 57 (2d Cir. 1986), cert. denied, 479 U.S. 1064, 107 S. Ct. 950, 93 L. Ed. 2d 999 (1987); In re J.R., 147 Vt. 7, 508 A.2d 719 (1986); In re C.W., 148 Vt. 282, 532 A.2d 566 (1987); In re L.T., 149 Vt. 473, 545 A.2d 522 (1988); In re J.R., 153 Vt. 85, 570 A.2d 154 (1989); In re M.M., 153 Vt. 102, 569 A.2d 463 (1989); In re J.S., 153 Vt. 365, 571 A.2d 658 (1989); In re A.K., 153 Vt. 462, 571 A.2d 75 (1990); In re J.B., 159 Vt. 321, 618 A.2d 1325 (1992); In re D.B., 161 Vt. 217, 635 A.2d 1207 (1993); In re D.C., 168 Vt. 1, 712 A.2d 902 (1998); In re S.W., 176 Vt. 517, 833 A.2d 879 (mem.) (2003); In re J.L., Juvenile, 181 Vt. 615, 928 A.2d 474 (mem.) (April 25, 2007).

Annotations From Former § 5534

1. Authority of court.

Family court may prohibit a placement by the Department of Social and Rehabilitation Services when the moving party satisfies the two criteria of subsection (2). In re E.L., 171 Vt. 612, 764 A.2d 1245 (mem.) (2000).

2. Discretion.

The question of whether to issue a protective order is committed to the sound discretion of the trial court, and the court's decision will stand on appellate review unless the record indicates that the court exercised its discretion for clearly untenable reasons or to an extent clearly unreasonable. In re J.S., 153 Vt. 365, 571 A.2d 658 (1989).

3. Limitations.

Court's power in crafting a protective order is limited to prohibiting such conduct as tends to defeat execution of court's disposition order. In re C.W., 169 Vt. 512, 739 A.2d 1236 (1999).

Family court abused its discretion in entering protective order which excluded mother entirely from town where her minor child resided with foster parents; although town-wide ban could provide child an additional sense of security, evidence of record did not support a finding that such broad relief was necessary to effectuate purposes of agency case plan. In re C.W., 169 Vt. 512, 739 A.2d 1236 (1999).

Juvenile court has not been granted power to intrude into Department of Social and Rehabilitation Services' custody whenever it perceives harmful or detrimental conduct; rather, its power is limited to prohibiting such conduct that tends to defeat execution of court's disposition order. In re B.F., 157 Vt. 67, 595 A.2d 280 (1991).

4. Use of restraints.

Juvenile court abused its discretion in issuing protective order prohibiting Department of Social and Rehabilitation Services from using leg irons, shackles, or similar restraints when transporting child to and from court; Department's manner of transport could not be found to defeat execution of disposition order, and protective order would be vacated. In re B.F., 157 Vt. 67, 595 A.2d 280 (1991).

Cited. In re K.M., 149 Vt. 109, 539 A.2d 549 (1987); In re B.L., 149 Vt. 375, 543 A.2d 265 (1988); In re A.K., 153 Vt. 462, 571 A.2d 75 (1990); In re J.B., 159 Vt. 321, 618 A.2d 1325 (1992).

Annotations From Former § 5535

1. Purpose.

Proceedings as to dependent and neglected children are protective, not penal, with no legislative purpose to condemn the child or its parents for the difficulties of the situation. In re Rathburn, 128 Vt. 429, 266 A.2d 423 (1970).

2. Institutions for delinquent children.

Subsection (d) of this section absolutely precludes placement of abused and neglected children in institutions whose programs are structured primarily to meet the needs of delinquent children. In re B.L., 149 Vt. 375, 543 A.2d 265 (1988).

The applicability of the prohibition in subsection (d) of this section is determined by the programmatic nature of the institution and not the percentage of the children placed there who have been adjudicated to be delinquent. In re B.L., 149 Vt. 375, 543 A.2d 265 (1988).

Cited. State v. Lafayette, 148 Vt. 288, 532 A.2d 560 (1987), overruled on other grounds, In re J.G. (1993) 160 Vt. 250, 627 A.2d 362; Sorge v. State, 171 Vt. 171, 762 A.2d 816 (2000).

Annotations From Former § 5536

1. Purpose.

The juvenile justice system serves rehabilitative rather than punitive goals; in order to make change and growth possible, the delinquent is protected from the stigma of his misconduct by the confidentiality of juvenile proceedings, records, and files. In re R.D., 154 Vt. 173, 574 A.2d 160 (1990).

2. Confidentiality.

Compelling interest of State in confidentiality of juvenile records overrode any compelling need of former deputy State prosecutor for access to such records, where former prosecutor desired to use juvenile records in her defense of a civil rights action brought against her personally by the mother of juvenile, at least where former prosecutor failed to show she had exhausted all other avenues of relief, and failed to show any particularized need for the material. In re J.R., 146 Vt. 185, 499 A.2d 1155 (1985).

In action against minor and his parents for damages arising from unlawful taking, by minor and two other minors, and negligent operation, of plaintiff's auto, it was error requiring reversal to admit statement minor gave police, in which minor related the taking of the auto, for statement was part of the record in juvenile case in which minor was found delinquent and was confidential. Camp v. Howe, 132 Vt. 429, 321 A.2d 71 (1974).

3. Separation of records.

Records of all persons under 16 who are involved in criminal activity, those from 16 to 18 who are transferred to juvenile court and all persons under 21 who has previously been through a juvenile proceeding are subject to the provisions of this section, and it is necessary for the Department to keep separate records in the case of those persons; that is, those files must be kept in a place other than those on adults. 1968-70 Op. Atty. Gen. 182.

Cited. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981); State v. Curtis, 157 Vt. 275, 597 A.2d 770 (1991); In re G.T., 170 Vt. 507, 758 A.2d 301 (2000).

Annotations From Former § 5537

1. Transfer of fingerprints.

Fingerprints take under the provisions of this section, by a subtroop, can be sent to a central office for work to be done on them. 1968-70 Op. Atty. Gen. 182.

Cited. In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981).

Annotations From Former § 5538

1. Time.

The only records which are to be sealed are those concerning a child who has been adjudicated delinquent or unmanageable and after the court finds that such child has been rehabilitated and has not been convicted of crimes within two years after his final discharge. 1968-70 Op. Atty. Gen. 182.

2. Hearing.

No sealing of records may take place until a hearing is had and the files of law enforcement officers will not be sealed until such times as a hearing is held upon notice to the law enforcement officers or department. 1968-70 Op. Atty. Gen. 182.

3. Place of sealing.

Sealing of records should be done at the office of the court, and the records which are sealed should be sent to the court for sealing. 1968-70 Op. Atty. Gen. 182.

4. Storage.

Once an order is issued that the records be sealed, the records should be sent to the court ordering sealing for their care and custody. 1968-70 Op. Atty. Gen. 182.

5. Habitual offenders.

Defendant failed in his argument, based on this section, that "convictions that can be expunged, upon application, from a defendant's record because they were obtained when he was a juvenile, should not be the basis for enhancing his exposure, now as an adult, to a potential life sentence." State v. Rideout, 182 Vt. 113, 933 A.2d 706 (July 20, 2007).

Cited. Cited In re J.S., 140 Vt. 458, 438 A.2d 1125 (1981); In re J.R., 146 Vt. 185, 499 A.2d 1155 (1985); State v. Barrette, 153 Vt. 476, 571 A.2d 1137 (1990).

Annotations From Former § 5539

Cited. State v. Lafayette, 152 Vt. 108, 564 A.2d 1068 (1989); In re K.B., 154 Vt. 647, 577 A.2d 277 (mem.) (1990); In re C.W., 169 Vt. 512, 739 A.2d 1236 (1999).

Annotations From Former § 5540

1. Construction with other laws.

In making a permanency-plan determination under § 5531 of this title, the court must consider the best interests of the child under the factors enumerated under this section. In re L.S., 172 Vt. 549, 772 A.2d 1077 (mem.) (2001).

While parental improvement is a factor to consider when determining whether to sever parental rights of a child who has been found to be in need of care and supervision on the basis of abandonment, the real test is whether there is a reasonable possibility of reuniting parent and child within a reasonable period of time. In re J.J., 143 Vt. 1, 458 A.2d 1129 (1983).

Juvenile court did not err in severing parental right of father, on the ground that there was no likelihood that he would be able to resume parental responsibilities within a reasonable period of time, where the record indicated that the father's past had been volatile, his present living arrangement was not appropriate for children, he was unemployed, had not contributed monetary support for the children since they had been committed to the custody of the State six years earlier, and expressed an unwillingness to do so and his mental health counselor testified that she did not know if the father would ever be in a position to take custody. In re J.J., 143 Vt. 1, 458 A.2d 1129 (1983).

Section 633 [now § 5503] of this title, which gives the juvenile court exclusive jurisdiction over juveniles, and this section clearly imply the authority of the juvenile court to reject a treatment plan proposed by the legal guardian; the requirement of section 655 (now § 5527) of this title, governing disposition reports, that the Department of Social and Rehabilitation Services or Department of Corrections submit a recommended case plan to the juvenile court would be meaningless if the juvenile court had no authority to reject such recommendation. In re G.F., 142 Vt. 273, 455 A.2d 805 (1982).

To sever parental rights to a neglected child completely, temporary placement outside the home must be inadequate to serve the best interests of the child, and a reasonable possibility of family restoration within a reasonable time will operate to bar total termination of parental rights. In re E.G., 139 Vt. 171, 423 A.2d 1197 (1980).

Order completely severing all parental rights and allowing adoption of six-year-old girl would be vacated where it was entered after initial finding of inability of parents to properly care for the child without leaving open the possibility in the future that the situation could be remedied and the family reunited. In re D.R., 136 Vt. 478, 392 A.2d 951 (1978).

2. Relationship with parents.

Family court may consider an older child's preference when it examines the first and fourth factors set forth in this section, which pertain to the child's relationship with her natural and foster parents and the type of role that the natural parents have played in the child's life. In re S.B., 174 Vt. 427, 800 A.2d 4476 (2002).

Absent clear legislative directive, court would not judicially expand meaning of "parent" to subsume a stepparent, psychological parent, or any other person claiming in loco parentis authority in a TPR proceeding, and thus stepfather was not entitled to be accorded party status. In re J.M., 170 Vt. 611, 750 A.2d 442 (mem.) (2000).

At hearing on modification of disposition order, trial court properly considered whether children had "bonded" to mother pursuant to subdivisions (1) and (4) of this section. In re C.L., 151 Vt. 480, 563 A.2d 241 (1989), cert. denied, 493 U.S. 1026, 110 S. Ct. 732, 107 L. Ed. 2d 751 (1990).

3. Termination of parental rights .

Family court did not abuse its discretion in concluding that termination of father's residual parental rights was in the child's best interests where it was shown that he bore sole responsibility for his frequent incarceration, his failure to maintain consistent contact with the Department of Social and Rehabilitation Services, and his lack of a bond with the child. In re K.F., 176 Vt. 636, 852 A.2d 584 (2004).

Family court acted within its discretion in terminating mother's parental rights with respect to her 16-year-old daughter, notwithstanding the daughter's stated opposition to termination and her desire to reunite with her mother. In re S.B., 174 Vt. 427, 800 A.2d 4476 (2002).

Any assistance the Department of Social and Rehabilitation Services (SRS) provided to troubled parents is a factor in determining whether SRS met its burden of showing, in a parental termination proceeding, that a parent is unlikely to be able to resume parental duties within a reasonable period of time. In re J.T., 166 Vt. 173, 693 A.2d 283 (1997).

In evaluating a parent's parenting skills over time in order to determine whether residual parental rights should be terminated, the central question is whether the improvement in parenting substantially conformed with the expectations at the time of the children in need of care and supervision adjudication and with Social and Rehabilitation Services' case plan; if the parent's progress meets the expectations, there is no change of circumstances, but if the improvement does not substantially conform with the established expectations, then the court may find a change of circumstances and proceed to the second prong of the inquiry - whether termination is in the children's best interests. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

It is well settled that the family court must conduct a two-step analysis whenever it considers modifying an existing disposition order relative to termination of residual parental rights: (1) the court must find a substantial change in material circumstances and, (2) if a substantial change in material circumstances is established, the court then must determine whether the best interests of the children require termination; this analysis is required whether the court is considering a modification during a dispositional review or during a hearing on a motion to modify disposition. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

In termination of parental rights proceeding, it was error for the family court to decline addressing mother's circumstances because, although one parent's improvement may prevent the court from finding a substantial change in material circumstances, the other parent's capacity may have stagnated or deteriorated, thus meeting the change-of-circumstances test and requiring a further inquiry into the best interests of the child. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

In any termination of parental rights proceeding, the family court must examine the circumstances of each parent individually. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

Public policy does not dictate that the parent-child bond be maintained regardless of the cost to the child, and § 5540 of this title recognizes that severance of that bond may be in the child's best interest. In re M.B., 162 Vt. 229, 647 A.2d 1001, cert. denied, 513 U.S. 1004, 115 S. Ct. 519, 130 L. Ed. 2d 424 (1994).

A two-step analysis is required in determining whether to terminate residual parental rights: first, to modify an existing disposition order, the court must find that changed circumstances so require in the best interest of the child, and the proponent of the modification must show the change to be a substantial change in material circumstances so as to warrant modification; second, the court must determine whether the best interests of the child, as set forth by statute, require that all parental rights and responsibilities be terminated. In re M.M., 159 Vt. 517, 621 A.2d 1276 (1993).

Termination of parental rights at a modification proceeding requires a two-step analysis; the court must find a substantial change in material circumstances warranting modification, and that the best interests of the juvenile requires termination of parental rights. In re J.M., 160 Vt. 146, 624 A.2d 362 (1993).

A court may terminate parental rights at a modification hearing if it finds that there has been a substantial change in material circumstances since the disposition order and that termination is in the child's best interests. In re D.B., 161 Vt. 217, 635 A.2d 1207 (1993).

The juvenile court may terminate all parental rights and responsibilities only if it is in the best interests of the child. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

In proceeding to terminate parental rights, the most critical factor in determining a child's best interests is whether the parent will be able to resume his parental duties within a reasonable period of time. In re R.W., 154 Vt. 649, 577 A.2d 253 (mem.) (1990).

The juvenile court may terminate all parental rights in a proceeding to determine if a child is in need of care or supervision if the court finds by clear and convincing evidence that it's in the best interests of the child as determined by consideration of statutory factors, the most important of which is whether the parent will be able to resume his parental duties within a reasonable time. In re G.S., 153 Vt. 651, 572 A.2d 1350 (mem.) (1990).

Juvenile court properly terminated mother's parental rights where findings were replete with facts sufficient to find mother would not be able to resume her parental duties within a reasonable time. In re K.B., 154 Vt. 647, 577 A.2d 277 (mem.) (1990).

Where court concluded that the mother and child had "no positive interaction whatsoever" but that the interactions between child and her foster parents had been positive; that child adjusted well to her foster home and school; that it was "highly unlikely" that parent could resume parental duties within a reasonable period of time; and that parent played no constructive role in child's welfare, court could conclude that parent was unfit and demonstrably incapable of providing an appropriate home. In re R.B., 152 Vt. 415, 566 A.2d 1310 (1989), cert. denied, Appleby v. Young, 493 U.S. 1086, 110 S. Ct. 1151, 107 L. Ed. 2d 1055 (1990).

*4. Likelihood of resumption of parental duties.

Termination of father's parental rights was supported by finding that, due to lack of significant contact between children and father and positive interaction between children and their foster parents, it was unlikely that father would be able to resume parental duties within a reasonable period of time. In re C.H., 170 Vt. 603, 749 A.2d 20 (mem.) (2000).

Family court did not err in terminating father's parental rights; father was unable to resume his parental duties within a reasonable time, where he claimed all of his family's problems were attributable to mother's epilepsy, he attended only 10 to 12 anger management sessions over two-and-a-half years, he never engaged in couples counseling with mother or in sexual abuse counseling with child, he yelled and swore at social worker in front of children during visitations and yelled directives at children, and he had poor impulse control and a low tolerance for frustration. In re D.C., 168 Vt. 1, 712 A.2d 902 (1998).

Family court did not err in terminating mother's parental rights, despite mother's substantial progress in dealing with her psychological difficulties; primary consideration is whether parent will be able to resume parental duties within a reasonable period of time, not merely whether there has been identifiable progress since child was originally removed from household. In re J.B., 167 Vt. 637, 712 A.2d 895 (mem.) (1998).

Termination of residual parental rights at a modification hearing requires the court to determine whether the best interest of the child requires termination of all parental rights, in light of the criteria set out in this section, and the critical factor in this determination is whether the natural parent will be able to resume parental duties within a reasonable time. A conclusion that the parent will be unlikely to resume parental duties within a reasonable time, thus justifying termination of parental rights, must be supported by clear and convincing evidence. In re B.M., 165 Vt. 331, 682 A.2d 477 (1996).

Where the father made substantial progress towards reunification with his child but his progress did not occur within a reasonable time for the child's needs, the court properly terminated his parental rights, because in a termination-of-parental-rights case the focus is on the future of the parent-child relationship and the court considers the parent's prospective ability to parent the child and not just the past circumstances that have affected the parent-child relationship. In re B.M., 165 Vt. 331, 682 A.2d 477 (1996).

The polestar in disposition proceedings is the best interests of the child, considering the criteria enumerated in this section, and the most important of those statutory factors when considering termination of parental rights is the likelihood that the parent will be able to resume parental duties within a reasonable time. In re B.M., 165 Vt. 194, 679 A.2d 891 (1996).

Where father had abused wife, which was a significant reason the children were placed in State custody, and where, for more than 18 months, the father did not take advantage of the services that the Department of Social and Rehabilitation Services made available to him, nor did he follow through with counseling, there was no error in terminating father's parental rights at the initial disposition of the parental termination hearing. In re B.M., 165 Vt. 194, 679 A.2d 891 (1996).

The best interests of the children must be considered in accordance with the four criteria set forth in § 5540 of this title: (1) The interaction and interrelationship of the child with his natural parents, his foster parents if any, his siblings, and any other person who may significantly affect the child's best interests; (2) The child's adjustment to his home, school, and community; (3) The likelihood that the natural parent will be able to resume his parental duties within a reasonable period of time; and (4) Whether the natural parent has played and continues to play a constructive role, including personal contact and demonstrated love and affection, in the child's welfare; the most important of the four criteria is the third, concerning resumption of parental duties. In re M.B., 162 Vt. 229, 647 A.2d 1001, cert. denied, 513 U.S. 1004, 115 S. Ct. 519, 130 L. Ed. 2d 424 (1994).

To justify termination, the trial court must find, by clear and convincing evidence, that termination is in the best interests of the child, and, in particular, whether the parent will be able to resume parental duties within a reasonable period of time. In re M.B., 162 Vt. 229, 647 A.2d 1001, cert. denied, 513 U.S. 1004, 115 S. Ct. 519, 130 L. Ed. 2d 424 (1994).

The most critical factor in determining whether a minor child's best interests mandate the termination of all parental rights and responsibilities is whether the parent will be able to resume her parental duties within a reasonable time. In re M.M., 159 Vt. 517, 621 A.2d 1276 (1993).

In a proceeding for termination of all parental rights and responsibilities, the parent's inability to resume parental duties within a reasonable time must be shown by clear and convincing evidence. In re M.M., 159 Vt. 517, 621 A.2d 1276 (1993).

In a proceeding to terminate parental rights and responsibilities, trial court did not misinterpret requirement of inability to resume parental duties within reasonable time where a reasonable time already had passed, parent was still at least 12 to 18 months of counselling away from even being in a position to be considered for reunification, and despite some progress, each gain was followed by subsequent stagnation or deterioration. In re M.M., 159 Vt. 517, 621 A.2d 1276 (1993).

In a modification proceeding for termination of parental rights, the most critical factor in determining the best interest of the children is the likelihood that the natural parent will be able to resume parental duties within a reasonable period of time. In re A.F., 160 Vt. 175, 624 A.2d 867 (1993).

The court's conclusion that a parent will be unlikely to resume her parental duties must be supported by clear and convincing evidence. In re A.F., 160 Vt. 175, 624 A.2d 867 (1993).

Most important issue in determining whether child's best interests require termination of parental rights is whether parents will be able to resume their parental duties within reasonable period of time; other factors court must consider include child's relationship with foster parents. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

Department of Social and Rehabilitation Services did not violate parents' constitutional right to travel and did not cause conditions which necessitated termination of residual parental rights by failing to work with parents when they were out of State, since parents' voluntary move out of state conflicted with their previous commitment to stable employment and housing, regular visits with the children, and attendance at counseling. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

Most important factor in determining child's best interests, for purpose of determining whether to terminate parental rights, is whether parent will be able to resume parental duties within a reasonable time. In re M.M., 159 Vt. 41, 613 A.2d 713 (1992).

*5. Changed circumstances.

Clear and convincing evidence supported family court's finding of substantial change in material circumstances based on mother's stagnation, as well as court's determination that terminating mother's parental rights was in children's best interest. In re A.W., 167 Vt. 601, 708 A.2d 910 (mem.) (1998).

In a termination-of-parental-rights case, although the father had made significant parental improvement while the case was proceeding, the later improvement did not erase the earlier period of stagnation from which the child suffered, and the question when determining if the father's parental rights should be terminated was whether the improvement substantially conformed with the expectations at the time of the original adjudication and with the case plan of the Department of Social and Rehabilitation Services. In re B.M., 165 Vt. 331, 682 A.2d 477 (1996).

In determining whether to terminate residual parental rights, a substantial change in material circumstances is most often found when a parent's ability to care properly for a child has either stagnated or deteriorated over the passage of time; although stagnation may be found when the parent has made no improvement over time, some improvement will not preclude a finding that the parent's capacity to care for the child has, indeed, stagnated. In re S.M., 163 Vt. 136, 655 A.2d 726 (1994).

The decision to terminate parental rights is committed to the discretion of the family court, and requires a threshold determination that a substantial change in material circumstances has occurred; if the change in circumstances has been established, the court may order termination only upon concluding that severance of the parent-child bond is in the best interest of the child. In re D.M., 162 Vt. 33, 641 A.2d 774 (1994).

Stagnation of unacceptable situation is sufficient to constitute material change in circumstances sufficient to terminate parental rights at modification proceeding. In re M.M., 159 Vt. 41, 613 A.2d 713 (1992).

*6. Alternative placement.

In modification proceeding for termination of residual parental rights, family court did not err in concluding that parental improvement had come too late and that best interests of child were served by termination of parental relations; foster parents had become child's psychological parents, biological parents remained unable to care for child, and degree of improvement by biological parents would not allow reunification within time to prevent very significant harm to child, who was particularly fragile and vulnerable. In re J.M., 160 Vt. 146, 624 A.2d 362 (1993).

Failure of CHINS children's foster parents to be chosen by SRS as adoptive parents in termination of residual parental rights case did not undermine court's termination decision such that reversal was warranted; termination of residual parental rights does not depend on the existence of an alternative placement. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

Juvenile court is not precluded from terminating parental rights and responsibilities of unfit parents pending development of an alternative permanent placement. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

Juvenile court did not err in terminating parental rights and responsibilities of an abusive father despite the fact that, at time of termination, no alternative permanent placement existed. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

*7. Visitation.

Juvenile court did not err in declining to consider visitation for father after it justifiably terminated his residual parental rights and responsibilities to children; the termination of residual parental rights necessarily eliminated his right to visit the child. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

*8. Adoption.

There is a legislative policy of permitting adoption without parental consent only when the best interests of the child cannot be achieved by temporary removal and placement outside the home, and that total termination of parental rights will not be ordered in the first instance if there is a reasonable possibility that the situation can be remedied and the family reunited within a reasonable time. In re D.R., 136 Vt. 478, 392 A.2d 951 (1978).

*9. Mental retardation.

The Department of Social and Rehabilitation Services' alleged violation of the requirements of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, in that it allegedly failed to accommodate mother's disability, mental retardation, could not be raised as a defense in a proceeding to terminate parental rights (TPR), as TPR proceedings are not "services, programs or activities" within the meaning of 42 U.S.C. § 12132. Even if the ADA applied directly to TPR proceedings, there is no specific discrimination against disabled persons in the TPR process, as mental retardation is not, by itself, a ground for terminating parental rights. In deciding whether to terminate parental rights, the court must determine the best interests of the child in accordance with four criteria set out in this section, which criteria a mentally retarded parent is capable of meeting. In re B.S., 166 Vt. 345, 693 A.2d 716 (1997).

*10. Evidence.

Where it was shown that the parents had ample time and opportunity to address the significant problems that led to their children being taken from them, but instead of making an effort to address those problems, they denied having any problem, refused services, and engaged in a pattern of behavior that was harmful to their children, the family court's decision to maintain the status quo did not follow from its findings, which overwhelmingly demonstrated that termination of parental rights was in the children's best interests. In re J.F., 180 Vt. 583, 904 A.2d 1209 (mem.) (June 5, 2006).

In the case of an unwed biological father, the trial court did not err in terminating his parental rights where the evidence showed that even a minimal level of interest would have alerted him to the fact of mother's pregnancy and the possibility that he was the father, and that he missed his initial paternity test, expressed an initial interest in voluntarily relinquishing his parental rights, and delayed for two months after discovering his paternity to assert any custodial rights. In re C.L., 178 Vt. 558, 878 A.2d 207 (mem.) (March 15, 2005).

Where father and mother conceded that they could not care for their child and would not be able to do so in the foreseeable future, the evidence overwhelmingly supported the court's determination that the parents had failed to play a constructive role in the child's life and that they would be unable to resume parental duties within a reasonable time. In re T.T., 178 Vt. 496, 872 A.2d 334 (mem.) (February 22, 2005).

Statutory criteria supported the family court's termination order where the court found that foster parents wanted to provide the child with the permanence he needed, while still maintaining a relationship between him, his siblings, and his grandfather, and, in contrast, the child's relationship with his grandfather and siblings was more in the nature of playmates rather than family. In re T.T., 178 Vt. 496, 872 A.2d 334 (mem.) (February 22, 2005).

Termination of father's parental right was justified based on evidence that supported the family court's finding that he had shown little improvement in his parenting ability during the 15 months since his child had been adjudicated a child in need of care and supervision. In re S.W., 176 Vt. 517, 833 A.2d 879 (mem.) (2003).

Family court terminating mother's parental rights did not err by giving undue weight to psychological role foster parents had come to play in juvenile's life; court considered and related evidence to all applicable statutory factors, and court was clear that lodestar criterion was whether mother would be able to resume parental duties within reasonable period of time. In re J.B., 167 Vt. 637, 712 A.2d 895 (mem.) (1998).

Although father argued that the court, in a parental termination proceeding, erred in failing to make specific findings concerning whether the Department of Social and Rehabilitation Services (SRS) made reasonable efforts to assist him, under this section the court is required to make specific findings on four statutory considerations, but whether SRS made reasonable efforts to assist the parents is not one of them. In re J.T., 166 Vt. 173, 693 A.2d 283 (1997).

The court's findings, in a parental termination proceeding, on the services offered to father and his lack of benefit from the programs supported its conclusion that father failed to recognize and address deficiencies in his own parenting skills, and that, even if he remained separated from the mother, he would be unable to resume parenting within a reasonable period of time. In re J.T., 166 Vt. 173, 693 A.2d 283 (1997).

In a parental termination proceeding, where supervised visits with the children were an opportunity for both parents to show improved parenting skills, but father did nothing to curb the rage or reign in the erratic behaviors of mother, and the court found that the Department of Social and Rehabilitation Services (SRS) attempted to provide additional services to father, but that he made no effort to revise his work schedule to enable participation, father failed to show these findings to be clearly erroneous. In re J.T., 166 Vt. 173, 693 A.2d 283 (1997).

Termination based on psychological testing results suggesting that father's parenting skills were inadequate and that he would not be able to properly care for the child in the immediate or foreseeable future would have been improper in the absence of other evidence; psychological testing may not be the sole basis for an order terminating parental rights. In re B.M., 165 Vt. 331, 682 A.2d 477 (1996).

The record contains clear and convincing evidence on all the relevant criteria of § 5540 of this title, evidence that supports the termination of the father's parental rights, and the father fails to specify how trial counsel's presumed incompetence prejudiced his case sufficiently to create the reasonable probability of a different outcome. In re M.B., 162 Vt. 229, 647 A.2d 1001, cert. denied, 513 U.S. 1004, 115 S. Ct. 519, 130 L. Ed. 2d 424 (1994).

The court was presented with voluminous amounts of evidence that support a finding that termination of parental rights was in the best interest of the child; the daughter herself did not want contact with her father, the daughter was traumatized every time her father came to visit her, and the father, although given every chance, failed in general to improve his parenting skills over a substantial period of time. In re B.W., 162 Vt. 287, 648 A.2d 652 (1994).

The father's claim that termination of parental rights was unnecessary was not supported by the record; guided by the criteria in § 5540 of this title, the trial court found by clear and convincing evidence that termination of parental rights was in the best interests of the children to make it possible for them to remain in a stable, nurturing, and safe home environment, free from fear of the unpredictable dislocations that have characterized their lives with their father. In re M.B., 162 Vt. 229, 647 A.2d 1001, cert. denied, 513 U.S. 1004, 115 S. Ct. 519, 130 L. Ed. 2d 424 (1994).

Family court's conclusions that termination of parental rights and adoption by children's foster parents was in children's best interests were supported by evidence that the parents were totally unfit to have custody of their children and the likelihood that either parent would be able to resume parental duties within a year was nil. In re D.B., 161 Vt. 217, 635 A.2d 1207 (1993).

Argument was rejected that Department of Social and Rehabilitation Services (SRS) inadequately attempted to reunify family of child and mother, who eventually lost parental rights, where substantial evidence was presented that SRS worked energetically to assist mother, who spurned most of its attempts. In re K.M., 158 Vt. 114, 604 A.2d 788 (1992).

Juvenile court properly based termination of residual parental rights primarily on the parents' conduct, with secondary emphasis on children's relationship with foster parents. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

Trial court properly terminated parental rights of mother at 18-month review proceeding, where it carefully considered and weighed statutory criteria governing review of child-custody decisions; mother's parental rights were terminated, since placement of child in mother's home would risk abuse by mother and her boyfriend, foster home provided nurturing environment, mother lacked parenting skills, with no likelihood that she could resume parental duties within reasonable time period, and mother was disinterested in involvement in child's daily life. In re K.M., 158 Vt. 114, 604 A.2d 788 (1992).

Although experts were in favor terminating mother's parental rights, termination was not required where mother presented coherent testimony in favor of allowing her more time to improve her parenting skills. In re M.M., 159 Vt. 41, 613 A.2d 713 (1992).

At modification of parental rights hearing, consideration of the preadoptive home did not violate father's fundamental right to care for his juvenile daughter in the context of the family since court first found a change in material circumstances based on stagnation of the parents' ability to properly care for juvenile, and only then did court consider the relationship between juvenile and her foster parents, a factor which State statute requires court to consider, in determining whether modification was in the best interest of juvenile. In re S.R., 157 Vt. 417, 599 A.2d 364 (1991).

At modification of parental rights hearing, father's argument that court's consideration of quality of juvenile daughter's preadoptive foster home is irrelevant and violates his constitutional rights was not well founded since this section required court to consider the interaction of the juvenile with foster parents. In re S.R., 157 Vt. 417, 599 A.2d 364 (1991).

Hearsay evidence not admissible in a merits determination of the juvenile court may be properly admitted in termination of parental rights proceedings. In re L.A., 154 Vt. 147, 574 A.2d 782 (1990).

In a proceeding to terminate parental rights, where there is evidence of abuse of the juvenile under consideration, evidence concerning treatment of siblings is relevant and may be relied on by the court to support its conclusions with respect to the juvenile. In re K.B., 154 Vt. 647, 577 A.2d 277 (mem.) (1990).

In proceeding to terminate mother's parental rights, evidence of mother's continued denial of the siblings' sexual abuse and her lack of ability to recognize and therefore protect juvenile against sexual abuse was relevant to the totality of the home environment directly impacting on the juvenile's well-being. In re K.B., 154 Vt. 647, 577 A.2d 277 (mem.) (1990).

In the case of a juvenile who had been committed to state custody and placed in a foster home after being adjudged in need of care and supervision on the basis of abandonment, it was not error for juvenile court to conclude that it was in the child's best interest to sever his father's parental rights six years later, where the evidence indicated that the child had adjusted to his foster family, that he desired to stay with them and they wished to adopt him, that the father was not in a position to take custody, and there was no likelihood that he would be in a position to resume parental responsibilities within a reasonable period of time. In re J.J., 143 Vt. 1, 458 A.2d 1129 (1983).

11. Standard of proof.

Although the court was required to determine by only a preponderance of the evidence that children were in need of care and supervision, the court found by the higher standard of clear and convincing evidence that one child was without the proper parental care necessary for her physical and emotional well-being and that another child was without the proper parental care necessary for her physical well-being; therefore, the argument that the court could not, in a parental termination proceeding, incorporate findings based on clear and convincing evidence from the children-in-need-of-care-and-supervision proceeding was without merit. In re J.T., 166 Vt. 173, 693 A.2d 283 (1997).

While the State's burden in a child-in-need-of-care-and-supervision case merits hearing is proof by a preponderance of the evidence, this burden rises to clear and convincing evidence in a proceeding to terminate parental rights. In re J.T., 166 Vt. 173, 693 A.2d 283 (1997).

In a proceeding to terminate parental rights under §§ 5532 and 5540 of this title, a higher burden of proof must be met than in a child in need of care and supervision hearing so that the State must prove by clear and convincing evidence that there has been a material change in circumstances and that the best interest of the child requires termination of parental rights and responsibilities. In re J.R., 164 Vt. 267, 668 A.2d 670 (1995).

12. Findings.

Where the family court clearly found and considered that mother had not made sufficient progress in the prior 17 months to support the conclusion that she would be able to parent the child in a reasonable period of time, and this conclusion was supported by the fact that the "reasonableness" of the time period must be judged from the perspective of child - a rapidly developing two-year old who had been in foster care since she was six months old - the opinion as a whole encompassed all the factors required to be considered under this section. In re J.L., Juvenile, 181 Vt. 615, 928 A.2d 474 (mem.) (April 25, 2007).

The family court's findings supported its conclusion that the juvenile's best interests would be met by undergoing rehabilitation at a particular residential program it noted the family's commitment to the juvenile's rehabilitation; his inability to adjust to prior placements; his need for further treatment before his release from Department for Children and Families custody; and the ability of the designated program to meet his important and pressing needs. In re J.M., 178 Vt. 591, 878 A.2d 293 (mem.) (June 9, 2005).

This section does not require that children of the same mother be kept together; thus, there is no reason why the question does not fall within the "substantial leeway" accorded the trial court in framing a disposition order. In re B.M., 165 Vt. 194, 679 A.2d 891 (1996).

Findings of family court in a modification proceeding to terminate parental rights will withstand review unless clearly erroneous. In re J.M., 160 Vt. 146, 624 A.2d 362 (1993).

Juvenile court satisfied requirement of a clear and convincing showing of parental unfitness in termination of residual parental rights case, where, despite not saying exact words, court's findings and conclusions clearly indicated as much. In re E.B., 158 Vt. 8, 603 A.2d 373 (1992).

When the State seeks modification of a juvenile case plan, the court may find a substantial change in material circumstances based on "stagnation." In re S.R., 157 Vt. 417, 599 A.2d 364 (1992).

In order to determine best interests of children under section 659 [now § 5532] of this title, trial court is not required to make further findings as to continued abuse or neglect of children. In re C.L., 151 Vt. 480, 563 A.2d 241 (1989), cert. denied, 493 U.S. 1026, 110 S. Ct. 732, 107 L. Ed. 2d 751 (1990).

In proceeding for termination of parental rights in children, court need not couch its findings in precise language of this section as long as it is evident that the court fully considered the criteria set forth in the statute. In re G.V., 136 Vt. 499, 394 A.2d 1126 (1978).

13. Harmless error.

Where court concluded that Department of Social and Rehabilitation Services (SRS) had not proven by clear and convincing evidence that termination of mother's parental rights was in best interests of children and solidified status quo of continuing foster care and allowing appropriate visitation, any error was harmless; if court had denied SRS's motion to terminate parental rights, or if motion had never been made, there would have been no difference in children's circumstances, absent decision by SRS to change their placement. In re M.M., 159 Vt. 41, 613 A.2d 713 (1992).

14. Review.

Court reviewing termination of parental rights resulting from a modification proceeding will uphold lower court's findings if supported by clear and convincing evidence, and its conclusions of law if supported by the findings. In re A.W., 167 Vt. 601, 708 A.2d 910 (mem.) (1998).

Cited. In re T.L.S., 144 Vt. 536, 481 A.2d 1037 (1984); In re D.P., 147 Vt. 26, 510 A.2d 967 (1986); In re C.W., 148 Vt. 282, 532 A.2d 566 (1987); In re J.R., 153 Vt. 85, 570 A.2d 154 (1989); In re M.M., 153 Vt. 102, 569 A.2d 463 (1989); In re J.S., 153 Vt. 365, 571 A.2d 658 (1989); In re H.A., 153 Vt. 504, 572 A.2d 884, cert. denied, 498 U.S. 861, 111 S. Ct. 166, 112 L. Ed. 2d 131 (1990); In re J.H., 156 Vt. 66, 587 A.2d 1009 (1991); In re D.A., 172 Vt. 571, 772 A.2d 547 (2001); In re A.D.T., 174 Vt. 369, 817 A.2d 20 (2002).

Law review. Judicial discretion in cases involving children in need of care or supervision, see 8 Vt. L. Rev. 119 (1983).

§§ 5550-5562. Repealed. 2007, No. 185 (Adj. Sess.), § 13, eff. Jan. 1, 2009.

History

Former §§ 5550-5562. Former § 5550, relating to probation, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5551, relating to powers and responsibilities of the Commissioner regarding juvenile probation, was derived from 1993, No. 178 (Adj. Sess.), § 2; and amended by 1997, No. 33 , § 2.

Former § 5552, relating to conditions of probation, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5553, relating to juvenile probation certificate, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5554, relating to modification of conditions, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5555, relating to violation of conditions of probation, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5556, relating to summons, apprehension, and detention of juvenile probationer, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5557, relating to detention hearing, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5558, relating to notice; violation hearing, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5559, relating to disposition alternatives upon violation of conditions of probation, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5560, relating to final judgment, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5561, relating to discharge from probation, was derived from 1993, No. 178 (Adj. Sess.), § 2.

Former § 5562, relating to juvenile justice unit; juvenile justice director, was derived from 2003, No. 122 (Adj. Sess.), § 105b and amended by 2005, No. 45 , § 5; 2005, No. 174 (Adj. Sess.), § 122.

CHAPTER 57. INTERSTATE COMPACT ON JUVENILES

History

Repeal and recodification of chapter. Former chapter 57 of this title, consisting of §§ 5701-5715, was repealed and recodified pursuant to 2009, No. 108 (Adj. Sess.), § 12. For present provisions see §§ 5721-5733 of this title.

ANNOTATIONS

Cited. In re A.L.H., 160 Vt. 410, 630 A.2d 1288 (1993).

Subchapter 1. Compact

History

Recodification. Former subchapter 1 of this chapter, consisting of §§ 5701-5703, was recodified pursuant to 2009, No. 108 (Adj. Sess.), § 12.

§§ 5701-5703. Repealed. 2009, No. 108 (Adj. Sess.), § 12.

History

Former §§ 5701-5703. Former § 5701, relating to execution of compact, was derived from 1967, No. 285 (Adj. Sess.), § 2.

Former § 5702, relating to execution of additional article, was derived from 1967, No. 285 (Adj. Sess.), § 2A.

Former § 5703, relating to execution of amendment, was derived from 1967, No. 285 (Adj. Sess.), § 2B.

Annotations From Former § 5701

1. Constitutionality.

Interstate Compact on Juveniles is not constitutionally invalid as having been entered into without approval of the United States Congress and State of Vermont was authorized in proceeding on requisition from State of Colorado under the section. In re D.B., 139 Vt. 634, 431 A.2d 498, cert. denied, 454 U.S. 874, 102 S. Ct. 349, 70 L. Ed. 2d 181 (1981).

No potential derogation of the Compact Clause of the United States Constitution appears from the content of the Interstate Compact on Juveniles, which merely provides for an orderly and protective procedure for the return of juveniles who have escaped lawful custody, state or parental, in another state and for agreements between states to supervise juvenile probation as to parolees residing outside the committing state. In re D.B., 139 Vt. 634, 431 A.2d 498, cert. denied, 454 U.S. 874, 102 S. Ct. 349, 70 L. Ed. 2d 181 (1981).

Subchapter 2. Provisions Relating to Compact

History

Recodification. Former subchapter 2 of this chapter, consisting of §§ 5711-5715, was recodified pursuant to 2009, No. 108 (Adj. Sess.), § 12.

§§ 5711-5715. Repealed. 2009, No. 108 (Adj. Sess.), § 12.

History

Former §§ 5711-5715. Former § 5711, relating to the juvenile compact administrator, was derived from 1967, No. 285 (Adj. Sess.), § 3.

Former § 5712, relating to supplementary agreements, was derived from 1967, No. 285 (Adj. Sess.), § 4.

Former § 5713, relating to payments by state, was derived from 1967, No. 285 (Adj. Sess.), § 5.

Former § 5714, relating to enforcement of compact, was derived from 1967, No. 285 (Adj. Sess.), § 6.

Former § 5715, relating to additional procedures for return of juveniles, was derived from 1967, No. 285 (Adj. Sess.), § 7.

CHAPTER 57. INTERSTATE COMPACT ON JUVENILES

Sec.

§ 5721. Purpose.

  1. The compacting states to this Interstate Compact recognize that each state is responsible for the proper supervision or return of juveniles, delinquents, and status offenders who are on probation or parole and who have absconded, escaped, or run away from supervision and control and in so doing have endangered their own safety and the safety of others. The compacting states also recognize that each state is responsible for the safe return of juveniles who have run away from home and in so doing have left their state of residence. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.
  2. It is the purpose of this compact, through means of joint and cooperative action among the compacting states, to:
    1. ensure that the adjudicated juveniles and status offenders subject to this compact are provided adequate supervision and services in the receiving state as ordered by the adjudicating judge or parole authority in the sending state;
    2. ensure that the public safety interests of the citizens, including the victims of juvenile offenders, in both the sending and receiving states are adequately protected;
    3. return juveniles who have run away, absconded, or escaped from supervision or control or have been accused of an offense to the state requesting their return;
    4. make contracts for the cooperative institutionalization in public facilities in member states for delinquent youth needing special services;
    5. provide for the effective tracking and supervision of juveniles;
    6. equitably allocate the costs, benefits, and obligations of the compacting states;
    7. establish procedures to manage the movement between states of juvenile offenders released to the community under the jurisdiction of courts, juvenile departments, or any other criminal or juvenile justice agency which has jurisdiction over juvenile offenders;
    8. ensure immediate notice to jurisdictions where defined offenders are authorized to travel or to relocate across state lines;
    9. establish procedures to resolve pending charges (detainers) against juvenile offenders prior to transfer or release to the community under the terms of this compact;
    10. establish a system of uniform data collection on information pertaining to juveniles subject to this compact that allows access by authorized juvenile justice and criminal justice officials, and regular reporting of compact activities to heads of state, executive, judicial, and legislative branches, and juvenile and criminal justice administrators;
    11. monitor compliance with rules governing interstate movement of juveniles and initiate interventions to address and correct noncompliance;
    12. coordinate training and education regarding the regulation of interstate movement of juveniles for officials involved in such activity; and
    13. coordinate the implementation and operation of the compact with the Interstate Compact for the Placement of Children, the Interstate Compact for Adult Offender Supervision, and other compacts affecting juveniles, particularly in those cases where concurrent or overlapping supervision issues arise.
  3. It is the policy of the compacting states that the activities conducted by the Interstate Commission created in this chapter are the formation of public policies and therefore are public business.  Furthermore, the compacting states shall cooperate and observe their individual and collective duties and responsibilities for the prompt return and acceptance of juveniles subject to the provisions of this compact.  The provisions of this compact shall be reasonably and liberally construed to accomplish the purposes and policies of the compact.

    Added 2009, No. 108 (Adj. Sess.), § 12.

History

2011. Deleted language duplicating subdiv. (b)(3) that was erroneously included in subdiv. (b)(2).

§ 5722. Definitions.

As used in this chapter, unless the context clearly requires a different construction:

  1. "Bylaws" means those bylaws established by the Interstate Commission for its governance, or for directing or controlling its actions or conduct.
  2. "Commissioner" means the voting representative of each compacting state appointed pursuant to section 5723 of this title.
  3. "Compact administrator" means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission, and policies adopted by the State Council under this compact.
  4. "Compacting state" means any state which has enacted the enabling legislation for this compact.
  5. "Court" means any court having jurisdiction over delinquent, neglected, or dependent children.
  6. "Deputy compact administrator" means the individual, if any, in each compacting state appointed to act on behalf of a compact administrator pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of juveniles subject to the terms of this compact, the rules adopted by the Interstate Commission, and policies adopted by the State Council under this compact.
  7. "Interstate Commission" means the Interstate Commission for Juveniles created by section 5723 of this title.
  8. "Juvenile" means any person defined as a juvenile in any member state or by the rules of the Interstate Commission, including:
    1. an accused delinquent (a person charged with an offense that, if committed by an adult, would be a criminal offense);
    2. an adjudicated delinquent (a person found to have committed an offense that, if committed by an adult, would be a criminal offense);
    3. an accused status offender (a person charged with an offense that would not be a criminal offense if committed by an adult);
    4. an adjudicated status offender (a person found to have committed an offense that would not be a criminal offense if committed by an adult); and
    5. a nonoffender (a person in need of supervision who has not been accused or adjudicated a status offender or delinquent).
  9. "Noncompacting state" means any state which has not enacted the enabling legislation for this compact.
  10. "Probation or parole" means any kind of supervision or conditional release of juveniles authorized under the laws of the compacting states.
  11. "Rule" means a written statement by the Interstate Commission promulgated pursuant to section 5726 of this title that is of general applicability; implements, interprets, or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the Commission; and has the force and effect of statutory law in a compacting state, and includes the amendment, repeal, or suspension of an existing rule.
  12. "State" means a state of the United States, the District of Columbia (or its designee), the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Marianas Islands.

    Added 2009, No. 108 (Adj. Sess.), § 12.

§ 5723. Interstate Commission for Juveniles.

  1. The compacting states hereby create the Interstate Commission for Juveniles.  The Commission shall be a body corporate and joint agency of the compacting states.  The Commission shall have all the responsibilities, powers, and duties set forth in this chapter, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
  2. The Interstate Commission shall consist of commissioners appointed by the appropriate appointing authority in each state pursuant to the rules and requirements of each compacting state and in consultation with the State Council for Interstate Juvenile Supervision created in this chapter. The commissioner shall be the compact administrator, deputy compact administrator, or designee from that state who shall serve on the Interstate Commission in such capacity under or pursuant to the applicable law of the compacting state.
  3. In addition to the commissioners who are the voting representatives of each state, the Interstate Commission shall include individuals who are not commissioners, but who are members of interested organizations.  The noncommissioner members shall include a member of the National Organizations of Governors, legislators, state chief justices, attorneys general, Interstate Compact for Adult Offender Supervision, Interstate Compact for the Placement of Children, juvenile justice and juvenile corrections officials, and crime victims.  All noncommissioner members of the Interstate Commission shall be ex-officio (nonvoting) members.  The Interstate Commission may provide in its bylaws for such additional ex-officio members, including members of other national organizations, in such numbers as shall be determined by the Commission.
  4. Each compacting state represented at any meeting of the Commission is entitled to one vote.  A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the Interstate Commission.
  5. The Commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings.  Public notice shall be given of all meetings, and meetings shall be open to the public.
  6. The Interstate Commission shall establish an executive committee, which shall include Commission officers, members, and others as determined by the bylaws.  The executive committee shall have the power to act on behalf of the Interstate Commission during periods when the Interstate Commission is not in session, with the exception of rulemaking or amending the compact.  The executive committee shall: oversee the day-to-day activities of the administration of the compact, managed by an executive director and Interstate Commission staff; administer enforcement and compliance with the provisions of the compact, its bylaws, and rules; and perform such other duties as directed by the Interstate Commission or set forth in the bylaws.
  7. Each member of the Interstate Commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the Interstate Commission.  A member shall vote in person and shall not delegate a vote to another compacting state. However, a commissioner, in consultation with the State Council, shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the compacting state at a specified meeting.  The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication.
  8. The Interstate Commission's bylaws shall establish conditions and procedures under which the Interstate Commission shall make its information and official records available to the public for inspection or copying.  The Interstate Commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests.
  9. Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact.  The Interstate Commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:
    1. relate solely to the Interstate Commission's internal personnel practices and procedures;
    2. disclose matters specifically exempted from disclosure by statute;
    3. disclose trade secrets or commercial or financial information which is privileged or confidential;
    4. involve accusing any person of a crime, or formally censuring any person;
    5. disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
    6. disclose investigative records compiled for law enforcement purposes;
    7. disclose information contained in or related to examination, operating, or condition reports prepared by or on behalf of or for the use of the Interstate Commission with respect to a regulated person or entity for the purpose of regulation or supervision of such person or entity;
    8. disclose information, the premature disclosure of which would significantly endanger the stability of a regulated person or entity; or
    9. specifically relate to the Interstate Commission's issuance of a subpoena, or its participation in a civil action or other legal proceeding.
  10. For every meeting closed pursuant to this provision, the Interstate Commission's legal counsel shall publicly certify that, in the legal counsel's opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision.  The Interstate Commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefore, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question).  All documents considered in connection with any action shall be identified in such minutes.
  11. The Interstate Commission shall collect standardized data concerning the interstate movement of juveniles as directed through its rules which shall specify the data to be collected, the means of collection, and data exchange and reporting requirements.  Such methods of data collection, exchange, and reporting shall, insofar as is reasonably possible, conform to up-to-date technology and coordinate its information functions with the appropriate repository of records.

    Added 2009, No. 108 (Adj. Sess.), § 12.

§ 5724. Powers and duties.

  1. The Commission shall have the following powers and duties:
    1. To provide for dispute resolution among compacting states.
    2. To promulgate rules to effect the purposes and obligations as enumerated in this compact, which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact.
    3. To oversee, supervise, and coordinate the interstate movement of juveniles subject to the terms of this compact and any bylaws adopted and rules promulgated by the Interstate Commission.
    4. To enforce compliance with the compact provisions, the rules promulgated by the Interstate Commission, and the bylaws, using all necessary and proper means, including the use of judicial process.
    5. To establish and maintain offices which shall be located within one or more of the compacting states.
    6. To purchase and maintain insurance and bonds.
    7. To borrow, accept, hire, or contract for services of personnel.
    8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions, including an executive committee as required by section 5723 of this title which shall have the power to act on behalf of the Interstate Commission in carrying out its powers and duties hereunder.
    9. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties, and determine their qualifications; and to establish the Interstate Commission's personnel policies and programs relating to, inter alia, conflicts of interest, rates of compensation, and qualifications of personnel.
    10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of it.
    11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed.
    12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed.
    13. To establish a budget and make expenditures and levy dues as provided in section 5728 of this title.
    14. To sue and be sued.
    15. To adopt a seal and bylaws governing the management and operation of the Interstate Commission.
    16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
    17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the Interstate Commission during the preceding year.  Such reports shall also include any recommendations that may have been adopted by the Interstate Commission.
    18. To coordinate education, training, and public awareness regarding the interstate movement of juveniles for officials involved in such activity.
    19. To establish uniform standards of the reporting, collecting, and exchanging of data.
  2. The Interstate Commission shall maintain its corporate books and records in accordance with the bylaws.

    Added 2009, No. 108 (Adj. Sess.), § 12.

§ 5725. Organization and operation.

  1. Bylaws.  The Interstate Commission shall, by a majority of the members present and voting, within 12 months after the first Interstate Commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including:
    1. establishing the fiscal year of the Interstate Commission;
    2. establishing an executive committee and such other committees as may be necessary;
    3. providing for the establishment of committees governing any general or specific delegation of any authority or function of the Interstate Commission;
    4. providing reasonable procedures for calling and conducting meetings of the Interstate Commission, and ensuring reasonable notice of each such meeting;
    5. establishing the titles and responsibilities of the officers of the Interstate Commission;
    6. providing a mechanism for concluding the operations of the Interstate Commission and the return of any surplus funds that may exist upon the termination of the compact after the payment or reserving of all of its debts and obligations;
    7. providing start-up rules for initial administration of the compact; and
    8. establishing standards and procedures for compliance and technical assistance in carrying out the compact.
  2. Officers and staff.
    1. The Interstate Commission shall, by a majority of its members, elect annually from among its members a chairperson and a vice chairperson, each of whom shall have such authority and duties as may be specified in the bylaws.  The chairperson or, in the chairperson's absence or disability, the vice chairperson, shall preside at all meetings of the Interstate Commission. The officers so elected shall serve without compensation or remuneration from the Interstate Commission, provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any ordinary and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the Interstate Commission.
    2. The Interstate Commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions, and for such compensation as the Interstate Commission may deem appropriate.  The executive director shall serve as secretary to the Interstate Commission, but shall not be a member and shall hire and supervise such other staff as may be authorized by the Interstate Commission.
  3. Qualified immunity, defense, and indemnification.
    1. The Commission's executive director and employees shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities; provided, that any such person shall not be protected from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.
    2. The liability of any commissioner, or the employee or agent of a commissioner, acting within the scope of such person's employment or duties for acts, errors, or omissions occurring within such person's state may not exceed the limits of liability set forth under the Constitution and laws of that state for state officials, employees, and agents.  Nothing in this subsection shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.
    3. The Interstate Commission shall defend the executive director or the employees or representatives of the Interstate Commission and, subject to the approval of the attorney general of the state represented by any commissioner of a compacting state, shall defend such commissioner or the commissioner's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.
    4. The Interstate Commission shall indemnify and hold the commissioner of a compacting state, or the commissioner's representatives or employees, or the Interstate Commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of Interstate Commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of Interstate Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

      Added 2009, No. 108 (Adj. Sess.), § 12, eff. July 1, 2010.

§ 5726. Rulemaking.

  1. The Interstate Commission shall promulgate and publish rules in order to effectively and efficiently achieve the purposes of the compact.
  2. Rulemaking shall occur pursuant to the criteria set forth in this section and the bylaws and rules adopted under it.  Such rulemaking shall substantially conform to the principles of the "Model State Administrative Procedures Act," 1981 Act, Uniform Laws Annotated, Vol. 15, p.1 (2000), or such other administrative procedures act as the Interstate Commission deems appropriate, consistent with due process requirements under the United States and Vermont Constitutions.  All rules and amendments shall become binding as of the date specified, as published with the final version of the rule as approved by the Commission.
  3. When promulgating a rule, the Interstate Commission shall, at a minimum:
    1. publish the proposed rule's entire text, stating the reason for the proposed rule;
    2. allow and invite any and all persons to submit written data, facts, opinions, and arguments, which information shall be added to the record and made publicly available;
    3. provide an opportunity for an informal hearing if petitioned by 10 or more persons; and
    4. promulgate a final rule and its effective date, if appropriate, based on input from state or local officials, or interested parties.
  4. The Interstate Commission shall allow any interested person to file a petition for judicial review of a rule not later than 60 days after the rule is promulgated.  The petition shall be filed in the United States District Court for the District of Columbia or in the Federal District Court where the Interstate Commission's principal office is located.  If the court finds that the Interstate Commission's action is not supported by substantial evidence in the rulemaking record, the court shall hold the rule unlawful and set it aside.  For purposes of this subsection, evidence is substantial if it would be considered substantial evidence under the Model State Administrative Procedures Act.
  5. If a majority of the legislatures of the compacting states rejects a rule, those states may, by enactment of a statute or resolution in the same manner used to adopt the compact, cause that such rule shall have no further force and effect in any compacting state.
  6. The existing rules governing the operation of the Interstate Compact on Juveniles superseded by this chapter shall be null and void 12 months after the second meeting of the Interstate Commission created by section 5723 of this title.
  7. Upon determination by the Interstate Commission that a state of emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures of this section shall be retroactively applied to said rule as soon as reasonably possible, but no later than 90 days after the effective date of the emergency rule.

    Added 2009, No. 108 (Adj. Sess.), § 12, eff. July 1, 2010.

§ 5727. Oversight; enforcement; dispute resolution.

  1. Oversight.
    1. The Interstate Commission shall oversee the administration and operations of the interstate movement of juveniles subject to this compact in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states.
    2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent.  The provisions of this compact and the rules promulgated hereunder shall be received by all the judges, public officers, commissions, and departments of the state government as evidence of the authorized statute and administrative rules.  All courts shall take judicial notice of the compact and the rules.  In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the Interstate Commission, it shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.
  2. Dispute resolution.
    1. The compacting states shall report to the Interstate Commission on all issues and activities necessary for the administration of the compact as well as issues and activities pertaining to compliance with the provisions of the compact and its bylaws and rules.
    2. The Interstate Commission shall attempt, upon the request of a compacting state, to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and between compacting and noncompacting states.  The Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
    3. The Interstate Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact using any or all means set forth in section 5731 of this title.

      Added 2009, No. 108 (Adj. Sess.), § 12, eff. July 1, 2010.

§ 5728. Finance.

  1. The Interstate Commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.
  2. The Interstate Commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the Interstate Commission and its staff which must be in a total amount sufficient to cover the Interstate Commission's annual budget as approved each year.  The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Interstate Commission, taking into consideration the population of each compacting state and the volume of interstate movement of juveniles in each compacting state, and the Interstate Commission shall promulgate a rule binding upon all compacting states which governs said assessment.
  3. The Interstate Commission shall not incur any obligations of any kind prior to securing the funds adequate to meet them. The Interstate Commission shall not pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
  4. The Interstate Commission shall keep accurate accounts of all receipts and disbursements.  The receipts and disbursements of the Interstate Commission shall be subject to the audit and accounting procedures established under its bylaws, provided that all receipts and disbursements of funds handled by the Interstate Commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the Interstate Commission.

    Added 2009, No. 108 (Adj. Sess.), § 12, eff. July 1, 2010.

§ 5729. State council.

Each member state shall create a State Council for Interstate Juvenile Supervision. Each state may determine the membership of its own state council, provided that its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and the compact administrator, deputy compact administrator, or designee. Each compacting state retains the right to determine the qualifications of the compact administrator or deputy compact administrator. Each state council shall advise and may exercise oversight and advocacy concerning that state's participation in Interstate Commission activities and other duties as may be determined by that state, including development of policy concerning operations and procedures of the compact within that state.

Added 2009, No. 108 (Adj. Sess.), § 12, eff. July 1, 2010.

§ 5730. Compacting states; effective date; amendment.

  1. Any state as defined in subdivision 5722(12) of this title is eligible to become a compacting state.
  2. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than 35 of the states.  The initial effective date shall be the later of July 1, 2004, or upon enactment into law by the 35th jurisdiction.  Thereafter it shall become effective and binding as to any other compacting state upon enactment of the compact into law by that state.  The governors of nonmember states or their designees shall be invited to participate in the activities of the Interstate Commission on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.
  3. The Interstate Commission may propose amendments to the compact for enactment by the compacting states.  No amendment shall become effective and binding upon the Interstate Commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

    Added 2009, No. 108 (Adj. Sess.), § 12, eff. July 1, 2010.

§ 5731. Withdrawal; default; termination; judicial enforcement.

  1. Withdrawal.
    1. Once effective, the compact shall continue in force and remain binding upon each and every compacting state, provided that a compacting state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.
    2. The effective date of withdrawal is the effective date of the repeal.
    3. The withdrawing state shall immediately notify the chairperson of the Interstate Commission in writing upon the introduction of legislation repealing this compact in the withdrawing state.  The Interstate Commission shall notify the other compacting states of the withdrawing state's intent to withdraw within 60 days of its receipt thereof.
    4. The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.
    5. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the Interstate Commission.
  2. Technical assistance, fines, suspension, termination, and default.
    1. If the Interstate Commission determines that any compacting state has at any time defaulted in the performance of any of its obligations or responsibilities under this compact, or the bylaws or duly promulgated rules, the Interstate Commission may impose any or all of the following penalties:
      1. Remedial training and technical assistance as directed by the Interstate Commission.
      2. Alternative dispute resolution.
      3. Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the Interstate Commission.
      4. Suspension or termination of membership in the compact, which shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted and the Interstate Commission has determined that the offending state is in default.  Immediate notice of suspension shall be given by the Interstate Commission to the Governor, the Chief Justice or the chief judicial officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council.  The grounds for default include failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, the bylaws, or duly promulgated rules, and any other grounds designated in Commission bylaws and rules.  The Interstate Commission shall immediately notify the defaulting state in writing of the penalty imposed by the Interstate Commission and of the default pending a cure of the default. The Commission shall stipulate the conditions and the time period within which the defaulting state must cure its default.  If the defaulting state fails to cure the default within the time period specified by the Commission, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the compacting states, and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of termination.
    2. Within 60 days of the effective date of termination of a defaulting state, the Commission shall notify the Governor, the Chief Justice or chief judicial officer, the majority and minority leaders of the defaulting state's legislature, and the state council of such termination.
    3. The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including any obligations the performance of which extends beyond the effective date of termination.
    4. The Interstate Commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon in writing between the Interstate Commission and the defaulting state.
    5. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the Interstate Commission pursuant to the rules.
  3. Judicial enforcement.  The Interstate Commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the Interstate Commission, in the federal district where the Interstate Commission has its offices, to enforce compliance with the provisions of the compact its duly promulgated rules and bylaws against any compacting state in default.  In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney's fees.
  4. Dissolution of compact.
    1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one compacting state.
    2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the Interstate Commission shall be concluded and any surplus funds shall be distributed in accordance with the bylaws.

      Added 2009, No. 108 (Adj. Sess.), § 12, eff. July 1, 2010.

§ 5732. Severability; construction.

  1. The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
  2. The provisions of this compact shall be liberally construed to effectuate its purposes.

    Added 2009, No. 108 (Adj. Sess.), § 12, eff. July 1, 2010.

§ 5733. Binding effect; other laws.

  1. Other laws.
    1. Nothing in this chapter prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.
    2. All compacting states' laws other than state Constitutions and other interstate compacts conflicting with this compact are superseded to the extent of the conflict.
  2. Binding effect of compact.
    1. All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the Interstate Commission, are binding upon the compacting states.
    2. All agreements between the Interstate Commission and the compacting states are binding in accordance with their terms.
    3. Upon the request of a party to a conflict over meaning or interpretation of Interstate Commission actions, and upon a majority vote of the compacting states, the Interstate Commission may issue advisory opinions regarding such meaning or interpretation.
    4. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the Interstate Commission shall be ineffective, and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the time this compact becomes effective.

      Added 2009, No. 108 (Adj. Sess.), § 12, eff. July 1, 2010.

CHAPTER 58. WOODSIDE JUVENILE REHABILITATION CENTER

Sec.

History

Repeal of chapter. This chapter, which formerly consisted of §§ 5801 and 5802, relating to the Woodside Juvenile Rehabilitation Center, was repealed by 2021, No. 74 , § E.327, effective July 1, 2021.

§§ 5801, 5802. Repealed. 2021, No. 74, § E.327.

History

Former §§ 5801, 5802. Former § 5801, relating to the Woodside Juvenile Rehabilitation Center, was derived from 1993, No. 233 (Adj. Sess.), § 77 and amended by 2001, No. 142 (Adj. Sess.), § 118h; 2003, No. 145 (Adj. Sess.), § 3; 2011, No. 3 , § 97; 2017, No. 201 (Adj. Sess.), § 11.

Former § 5802, relating to separation of victim of sexual assault and perpetrator, was derived from 2007, No. 185 (Adj. Sess.), § 4.

CHAPTER 59. INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN

ANNOTATIONS

Cited. In re J.H., 156 Vt. 66, 587 A.2d 1009 (1991).

Subchapter 1. Interstate Compact on the Placement of Children

History

Enactment. 1971, No. 219 (Adj. Sess.), § 5, provided: "the Interstate Compact on the Placement of Children is hereby enacted into law and entered into with all other jurisdictions legally joining therein in form substantially as follows:" [followed by the articles as set out in this subchapter].

§ 5901. Purpose and policy - Article 1.

It is the purpose and policy of the party states to cooperate with each other in the interstate placement of children to the end that:

  1. Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.
  2. The appropriate authorities in a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.
  3. The proper authorities of the state from which the placement is made may obtain the most complete information on the basis on which to evaluate a projected placement before it is made.
  4. Appropriate jurisdictional arrangements for the care of children will be promoted.

    Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

Revision note. Subsecs. "(a)", "(b)", etc. were changed to subdivs. "(1)", "(2)", etc. to conform to V.S.A. style.

Prior law. 33 V.S.A. § 3151.

§ 5902. Definitions - Article II.

As used in this compact:

  1. "Child" means a person who, by reason of minority, is legally subject to parental, guardianship, or similar control.
  2. "Sending agency" means a party state, officer or employee thereof; a subdivision of a party state, or officer, or employee thereof; a court of a party state; a person, corporation, association, charitable agency, or other entity which sends, brings, or causes to be sent or brought any child to another party state.
  3. "Receiving state" means the state to which a child is sent, brought, or caused to be sent or brought, whether by public authorities or private persons or agencies, and whether for placement with state or local public authorities or for placement with private agencies or persons.
  4. "Placement" means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution but does not include any institution caring for the mentally ill, mentally defective, or epileptic or any institution primarily educational in character, and any hospital or other medical facility.

    Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

Revision note. Subsecs. "(a)", "(b)", etc. were changed to subdivs. "(1)", "(2)", etc. to conform to V.S.A. style.

Prior law. 33 V.S.A. § 3152.

§ 5903. Conditions for placement - Article III.

  1. No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.
  2. Prior to sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state.  The notice shall contain:
    1. the name, date, and place of birth of the child;
    2. the identity and address or addresses of the parents or legal guardian;
    3. the name and address of the person, agent or institution to or with which the sending agency proposes to send, bring, or place the child;
    4. a full statement of the reasons for such proposed action and evidence of the authority pursuant to which the placement is proposed to be made.
  3. Any public officer or agency in a receiving state which is in receipt of a notice pursuant to subsection (b) of this article may request of the sending agency, or any other appropriate officer or agency of or in the sending agency's state, and shall be entitled to receive therefrom such supporting or additional information as it may deem necessary under the circumstances to carry out the purpose and policy of this compact.
  4. The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interest of the child.

    Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

2021. In subsec. (c), substituted "subsection" for "paragraph" following "pursuant to" to conform to V.S.A. style.

Prior law. 33 V.S.A. § 3153.

§ 5904. Penalty for illegal placement - Article IV.

The sending, bringing, or causing to be sent or brought into any receiving state of a child in violation of the terms of this compact shall constitute a violation of the laws respecting the placement of children of both the state in which the sending agency is located or from which it sends or brings the child of the receiving state. Such violation may be punished or subjected to penalty in either jurisdiction in accordance with its laws. In addition to liability for any such punishment or penalty, any such violation shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency which empowers or allows it to place or care for children.

Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

Prior law. 33 V.S.A. § 3154.

§ 5905. Retention of jurisdiction - Article V.

  1. The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the child which it would have had if the child had remained in the sending agency's state, until the child is adopted, reaches majority, becomes self-supporting, or is discharged with the concurrence of the appropriate authority in the receiving state.  Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law.  The sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement.  Nothing contained herein shall defeat a claim of jurisdiction by a receiving state sufficient to deal with an act of delinquency or crime committed therein.
  2. When the sending agency is a public agency, it may enter into an agreement with an authorized public or private agency in the receiving state providing for the performance of one or more services in respect of such case by the latter as agent for the sending agency.
  3. Nothing in this compact shall be construed to prevent a private charitable agency authorized to place children in the receiving state from performing services or acting as agent in that state for a private charitable agency of the sending state; nor to prevent the agency in the receiving state from discharging financial responsibility for the support and maintenance of a child who has been placed on behalf of the sending agency without relieving the responsibility set forth in subsection (a) hereof.

    Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

2021. In subsec. (c), substituted "subsection" for "paragraph" following "set forth in" to conform to V.S.A. style.

Prior law. 33 V.S.A. § 3155.

§ 5906. Institutional care of delinquent children - Article VI.

A child adjudicated delinquent may be placed in an institution in another party jurisdiction pursuant to this compact but no such placement shall be made unless the child is given a court hearing on notice to the parent or guardian with opportunity to be heard, prior to his or her being sent to such other party jurisdiction for institutional care and the court finds that:

  1. equivalent facilities for the child are not available in the sending agency's jurisdiction; and
  2. institutional care in the other jurisdiction is in the best interest of the child and will not produce undue hardship.

    Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

Revision note. Subdivs. "1." and "2." were changed to "(1)" and "(2)" to conform to V.S.A. style.

Prior law. 33 V.S.A. § 3156.

ANNOTATIONS

Analysis

1. Procedural safeguards.

The procedural safeguards attendant upon any proceeding under chapter 12 [now chapter 51] of this title., relating to juveniles and juvenile proceedings, including the right to appointment of a guardian ad litem if the juvenile has no parent or guardian appearing for him, or their interests conflict with the juvenile's, or the court believes it is required in the interests of the child, apply to a hearing under this section. In re J.S., 139 Vt. 6, 420 A.2d 870 (1980).

2. Guardianship.

Father's dissent to appointment of guardian ad litem for juvenile State sought to send to an institution out of the state, the guardian ad litem to represent the interests of the juvenile, did not render the appointment erroneous, for the dissent of the father amounted to the appearance of a conflict of interest between father and child and rendered the father's guardianship for naught in the institutionalization proceeding. In re J.S., 139 Vt. 6, 420 A.2d 870 (1980).

§ 5907. Compact administrator - Article VII.

The executive head of each jurisdiction party to this compact shall designate an officer who shall be general coordinator of activities under this compact in his or her jurisdiction and who, acting jointly with like officers of other party jurisdictions, shall have power to promulgate rules and regulations to carry out more effectively the terms and provisions of this compact.

Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

Prior law. 33 V.S.A. § 3157.

§ 5908. Limitations - Article VIII.

This compact shall not apply to:

  1. the sending or bringing of a child into a receiving state by his or her parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his or her guardian and leaving the child with any such relative or nonagency guardian in the receiving state;
  2. any placement, sending or bringing of a child into a receiving state pursuant to any other interstate compact to which both the state from which the child is sent or brought and the receiving state are party, or to any other agreement between said states which has the force of law.

    Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

Revision note. Subsecs. "(a)", "(b)", etc. were changed to subdivs. "(1)”, "(2)", etc. to conform to V.S.A. style.

Prior law. 33 V.S.A. § 3158.

ANNOTATIONS

1. Construction.

Statutory language exempting "the sending or bringing of a child into a receiving state by his or her parent" does not preclude the court from asking for an Interstate Compact on Placement of Children study when the court is considering whether to place a child with a noncustodial parent out of state. The language "by his or her parent" indicates that it applies when a parent, having custody of a child, sends or brings a child into a state; the language does not apply in a situation in which a child in Department for Children and Families custody is being placed by the State, as was the case here. In re M.P., 211 Vt. 20, 219 A.3d 1315 (2019).

§ 5909. Enactment and withdrawal - Article IX.

This compact shall be open to joinder by any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and, with the consent of Congress, the Government of Canada or any province thereof. It shall become effective with respect to any such jurisdiction when such jurisdiction has enacted the same into law. Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until two years after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the Governor of each other party jurisdiction. Withdrawal of a party state shall not affect the rights, duties and obligations under this compact of any sending agency therein with respect to a placement made prior to the effective date of withdrawal.

Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

Prior law. 33 V.S.A. § 3159.

§ 5910. Construction and severability - Article X.

The provisions of this compact shall be liberally construed to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person, or circumstances is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state party thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Added 1971, No. 219 (Adj. Sess.), §§ 4, 5, eff. April 5, 1972.

History

Prior law. 33 V.S.A. § 3160.

Subchapter 2. Provisions Relating to Interstate Compact on the Placement of Children

§ 5921. Financial responsibility.

Financial responsibility for any child placed pursuant to the provisions of the Interstate Compact on the Placement of Children shall be determined in accordance with the provisions of Article V. However, in the event of partial or complete default of performance thereunder, the provisions of this title and Title 15 also may be invoked.

Added 1971, No. 219 (Adj. Sess.), § 6, eff. April 5, 1972.

History

Revision note. Substituted "Title 15" for "Title XV" to conform reference to V.S.A. style.

Prior law. 33 V.S.A. § 3201.

§ 5922. Appropriate public authorities.

The "appropriate public authorities" as used in Article II of the Interstate Compact on the Placement of Children shall, with reference to this State, mean the Department for Children and Families, and the Department shall receive and act with reference to notices required by Article III.

Added 1971, No. 219 (Adj. Sess.), § 7, eff. April 5, 1972; amended 1973, No. 152 (Adj. Sess.), § 26, eff. April 14, 1974; 2013, No. 131 (Adj. Sess.), § 78, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Substituted "Department for Children and Families," for "department of social and rehabilitation services" following "mean the" and "the Department" for "said department" preceding "shall receive", and deleted "said" following "required by".

Amendments--1973 (Adj. Sess.). Substituted "department of social and rehabilitation services" for "department of social welfare".

Prior law. 33 V.S.A. § 3202.

§ 5923. Commissioner for Children and Families.

As used in subsection (a) of Article V of the Interstate Compact on the Placement of Children, the phrase "appropriate authority in the receiving state" with reference to this State shall mean the Commissioner for Children and Families.

Added 1971, No. 219 (Adj. Sess.), § 8, eff. April 5, 1972; amended 1973, No. 152 (Adj. Sess.), § 27, eff. April 14, 1974; 2013, No. 131 (Adj. Sess.), § 79, eff. May 20, 2014.

History

2021. Substituted "subsection" for "paragraph" following "As used in" to conform to V.S.A. style.

Amendments--2013 (Adj. Sess.). Section heading: Substituted "for Children and Families" for "Social and Rehabilitation Services".

Substituted "Commissioner for Children and Families" for "commissioner of social and rehabilitation services" following "shall mean the".

Amendments--1973 (Adj. Sess.). Substituted "commissioner of social and rehabilitation services" for "commissioner of social welfare".

Prior law. 33 V.S.A. § 3203.

§ 5924. Agreements.

The officers and agencies of this State having authority to place children are hereby empowered to enter into agreements with appropriate officers or agencies of or in other party states pursuant to subsection (b) of Article V of the Interstate Compact on the Placement of Children. Any such agreement which contains a financial commitment or imposes a financial obligation on this State or agency thereof shall not be binding unless it has the approval in writing of the Secretary of the Agency of Administration.

Added 1971, No. 219 (Adj. Sess.), § 9, eff. April 5, 1972.

History

2021. Substituted "subsection" for "paragraph" following "pursuant to" in the first sentence to conform to V.S.A. style.

Prior law. 33 V.S.A. § 3204.

§ 5925. Placement of delinquent children.

The officers and agencies of this State having authority to place delinquent children may place such a child in an institution or in another state pursuant to Article VI of the Interstate Compact on the Placement of Children and shall retain jurisdiction as provided in Article V thereof.

Added 1971, No. 219 (Adj. Sess.), § 10, eff. April 5, 1972.

History

Prior law. 33 V.S.A. § 3205.

§ 5926. Placement of neglected or unmanageable children.

The officers and agencies of this State having authority to place neglected or unmanageable children may place such a child in another state. However, unless parental rights have been judicially terminated any such child being placed in another state pursuant to this compact shall, upon request, be given a court hearing on notice to the parent or guardian with opportunity to be heard prior to his or her being sent to such other state for care and the court finds that:

  1. equivalent facilities for the child are not available in this State;
  2. care in the other state is in the best interest of the child and will not produce undue hardship.

    Added 1971, No. 219 (Adj. Sess.), § 11, eff. April 5, 1972.

History

Revision note. Subdivs. "1." and "2." were changed to "(1)" and "(2)" to conform to V.S.A. style.

Prior law. 33 V.S.A. § 3206.

ANNOTATIONS

Analysis

1. Hearing.

Plain language of the statute governing the placement of neglected or unmanageable children affords all neglected and unmanageable children the right to a hearing before being placed out of state. Thus, as a hearing was required for all children, not just those whose parents' rights had not yet been terminated, appellee, whose parents had voluntarily relinquished custody of him, was entitled to a hearing. In re M.C., 209 Vt. 219, 204 A.3d 1123 (2018).

Parents are not entitled to a hearing regarding the propriety of out-of-state placement of their child under this section. In re A.K., 153 Vt. 462, 571 A.2d 75 (1990).

2. Evidence.

Statute governing interstate placement of children requires the court to find that no equivalent facilities are available in Vermont and that the placement is in the child's best interest and will not cause undue hardship. In a child in need of care or supervision (CHINS) case, at least with respect to a child on the cusp of adulthood, in order to establish that a long-term placement in a locked psychiatric residential treatment facility in another state is in a child's best interest, the State must present evidence of an expert evaluation or opinion that the minor has a psychiatric condition and needs long-term, intensive, institutional psychiatric treatment that cannot be provided in a less restrictive environment. In re S.R., - Vt. - , 253 A.3d 907 (Mar. 26, 2021).

When a child had been in Department for Children and Families (DCF) custody for nearly a year prior to the disposition hearing, but DCF did not get a psychiatric evaluation or present any expert testimony whatsoever to support its contention that the child needed to be placed in a locked psychiatric residential treatment facility out of state, and the child objected, remand was required. In re S.R., - Vt. - , 253 A.3d 907 (Mar. 26, 2021).

§ 5927. Executive head.

As used in Article VII of the Interstate Compact on the Placement of Children, the term "executive head" means the Secretary of the Agency of Human Services. The Secretary of the Agency of Human Services is hereby authorized to appoint a compact administrator in accordance with the terms of said Article VII.

Added 1971, No. 219 (Adj. Sess.), § 12, eff. April 5, 1972.

History

Prior law. 33 V.S.A. § 3207.

PART 5 Programs and Services for Vulnerable Adults

History

Amendments--2001 (Adj. Sess.). Substituted "Vulnerable Adults" for "Elderly and Disabled Persons" in the part heading.

Cross References

Cross references. Leisure time and benefits for the elderly, see 31 V.S.A. § 1001.

Aid to the aged, blind, and disabled, see chapter 13 of this title.

Special services for the blind, see chapter 15 of this title.

CHAPTER 61. VERMONT INDEPENDENCE FUND

Sec.

History

Repeal of chapter. This chapter, which comprised §§ 6101-6105, relating to the Vermont Independence Fund, was repealed by 2009, No. 135 (Adj. Sess.), § 26(16).

§§ 6101-6104. Repealed. 2009, No. 135 (Adj. Sess.), § 26(16).

History

Former §§ 6101-6104. Former § 6101, relating to policy and purpose, was derived from 1981, No. 234 (Adj. Sess.), § 1.

Former § 6102, relating to Independence Fund, was derived from 1981, No. 234 (Adj. Sess.), § 2 and amended by 1983, No. 9 , § 11.

Former § 6103, relating to Independence Board, was derived from 1981, No. 234 (Adj. Sess.), § 3.

Former § 6104, relating to specific powers and duties, was derived from 1981, No. 234 (Adj. Sess.), § 4.

§ 6105. Repealed. 2009, No. 33, § 83(n)(3).

History

Former § 6105. Former § 6105, relating to annual reports, was derived from 1981, No. 234 (Adj. Sess.), § 5 and amended by 1983, No. 63 , § 2.

CHAPTER 62. OLDER VERMONTERS ACT

Sec.

§ 6201. Short title.

This chapter may be cited as the "Older Vermonters Act."

Added 2019, No. 156 (Adj. Sess.), § 1, eff. Oct. 5, 2020.

§ 6202. Principles of system of services, supports, and protections for older Vermonters.

The State of Vermont adopts the following principles for a comprehensive and coordinated system of services and supports for older Vermonters:

  1. Self-determination.  Older Vermonters should be able to direct their own lives as they age so that aging is not something that merely happens to them but a process in which they actively participate. Whatever services, supports, and protections are offered, older Vermonters deserve dignity and respect and must be at the core of all decisions affecting their lives, with the opportunity to accept or refuse any offering.
  2. Safety and protection.  Older Vermonters should be able to live in communities, whether urban or rural, that are safe and secure. Older Vermonters have the right to be free from abuse, neglect, and exploitation, including financial exploitation. As older Vermonters age, their civil and legal rights should be protected, even if their capacity is diminished. Safety and stability should be sought, balanced with their right to self-determination.
  3. Coordinated and efficient system of services.  Older Vermonters should be able to benefit from a system of services, supports, and protections, including protective services, that is coordinated, equitable, and efficient; includes public and private cross-sector collaboration at the State, regional, and local levels; and avoids duplication while promoting choice, flexibility, and creativity. The system should be easy for individuals and families to access and navigate, including as it relates to major transitions in care. The system should be designed to address the needs and concerns of Older Vermonters and their families during normal times and in the event of a public health crisis, natural disaster, or other widespread emergency situation in this State.
  4. Financial security.  Older Vermonters should be able to receive an adequate income and have the opportunity to maintain assets for a reasonable quality of life as they age. If older Vermonters want to work, they should be able to seek and maintain employment without fear of discrimination and with any needed accommodations. Older Vermonters should also be able to retire after a lifetime of work, if they so choose, without fear of poverty and isolation.
  5. Optimal health and wellness.  Older Vermonters should have the opportunity to receive, without discrimination, optimal physical, dental, mental, emotional, and spiritual health through the end of their lives. Holistic options for health, exercise, counseling, and good nutrition should be both affordable and accessible. Access to coordinated, competent, and high-quality care should be provided at all levels and in all settings.
  6. Social connection and engagement.  Older Vermonters should be free from isolation and loneliness, with affordable and accessible opportunities in their communities for social connectedness, including work, volunteering, lifelong learning, civic engagement, arts, culture, and broadband access and other technologies. Older Vermonters are critical to our local economies and their contributions should be valued by all.
  7. Housing, transportation, and community design.  Vermont communities should be designed, zoned, and built to support the health, safety, and independence of older Vermonters, with affordable, accessible, appropriate, safe, and service-enriched housing, transportation, and community support options that allow them to age in a variety of settings along the continuum of care and that foster engagement in community life.
  8. Family caregiver support.  Family caregivers are fundamental to supporting the health and well-being of older Vermonters, and their hard work and contributions should be respected, valued, and supported. Family caregivers of all ages should have affordable access to education, training, counseling, respite, and support that is both coordinated and efficient.

    Added 2019, No. 156 (Adj. Sess.), § 1, eff. Oct. 5, 2020.

§ 6203. Definitions.

As used in this chapter:

  1. "Area agency on aging" means an organization designated by the State to develop and implement a comprehensive and coordinated system of services, supports, and protections for older Vermonters, family caregivers, and kinship caregivers within a defined planning and service area of the State.
  2. "Choices for Care program" means the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration or a successor program.
  3. "Department" means the Department of Disabilities, Aging, and Independent Living.
  4. "Family caregiver" means an adult family member or other individual who is an informal provider of in-home and community care to an older Vermonter or to an individual with Alzheimer's disease or a related disorder.
  5. "Greatest economic need" means the need resulting from an income level that is too low to meet basic needs for housing, food, transportation, and health care.
  6. "Greatest social need" means the need caused by noneconomic factors, including:
    1. physical and mental disabilities;
    2. language barriers; and
    3. cultural, social, or geographic isolation, including isolation caused by racial or ethnic status, sexual orientation, gender identity, or HIV status, that:
      1. restricts an individual's ability to perform normal daily tasks; or
      2. threatens the capacity of the individual to live independently.
      3. managing one's own financial affairs.
  7. "Home- and community-based services" means long-term services and supports received in a home or community setting other than a nursing home pursuant to the Choices for Care component of Vermont's Global Commitment to Health Section 1115 Medicaid demonstration or a successor program and includes home health and hospice services, assistive community care services, and enhanced residential care services.
  8. "Kinship caregiver" means an adult individual who has significant ties to a child or family, or both, and takes permanent or temporary care of a child because the current parent is unwilling or unable to do so.
  9. "Older Americans Act" means the federal law originally enacted in 1965 to facilitate a comprehensive and coordinated system of supports and services for older Americans and their caregivers.
  10. "Older Vermonters" means all individuals residing in this State who are 60 years of age or older.
    1. "Self-neglect" means an adult's inability, due to physical or mental impairment or diminished capacity, to perform essential self-care tasks, including: (11) (A) "Self-neglect" means an adult's inability, due to physical or mental impairment or diminished capacity, to perform essential self-care tasks, including:
    2. The term "self-neglect" excludes individuals who make a conscious and voluntary choice not to provide for certain basic needs as a matter of lifestyle, personal preference, or religious belief and who understand the consequences of their decision.

    (i) obtaining essential food, clothing, shelter, and medical care;

    (ii) obtaining goods and services necessary to maintain physical health, mental health, or general safety; or

  11. "Senior center" means a community facility that organizes, provides, or arranges for a broad spectrum of services for older Vermonters, including physical and mental health-related, social, nutritional, and educational services, and that provides facilities for use by older Vermonters to engage in recreational activities.
  12. "State Plan on Aging" means the plan required by the Older Americans Act that outlines the roles and responsibilities of the State and the area agencies on aging in administering and carrying out the Older Americans Act.
  13. "State Unit on Aging" means an agency within a state's government that is directed to administer the Older Americans Act programs and to develop the State Plan on Aging in that state.

    Added 2019, No. 156 (Adj. Sess.), § 1, eff. Oct. 5, 2020.

§ 6204. Department of Disabilities, Aging, and Independent Living; duties.

  1. The Department of Disabilities, Aging, and Independent Living is Vermont's designated State Unit on Aging.
    1. The Department shall administer all Older Americans Act programs in this State and shall develop and maintain the State Plan on Aging.
    2. The Department shall be the subject matter expert to guide decision making in State government for all programs, services, funding, initiatives, and other activities relating to or affecting older Vermonters, including:
      1. State-funded and federally funded long-term care services and supports;
      2. housing and transportation;
      3. health care reform activities; and
      4. public health crisis and emergency preparedness planning.
    3. The Department shall administer the Choices for Care program, which the Department shall do in coordination with efforts it undertakes in its role as the State Unit on Aging.
    1. The Department shall coordinate strategies to incorporate the principles established in section 6202 of this chapter into all programs serving older Vermonters. (b) (1)  The Department shall coordinate strategies to incorporate the principles established in section 6202 of this chapter into all programs serving older Vermonters.
    2. The Department shall use both qualitative and quantitative data to monitor and evaluate the system's success in targeting services to individuals with the greatest economic and social need.
  2. The Department's Advisory Board established pursuant to section 505 of this title shall monitor the implementation and administration of the Older Vermonters Act established by this chapter.

    Added 2019, No. 156 (Adj. Sess.), § 1, eff. Oct. 5, 2020.

§ 6205. Area agencies on aging; duties.

  1. Consistent with the Older Americans Act and in consultation with local home- and community-based service providers, each area agency on aging shall:
    1. develop and implement a comprehensive and coordinated system of services, supports, and protections for older Vermonters, family caregivers, and kinship caregivers within the agency's designated service area;
    2. target services and supports to older Vermonters with the greatest economic and social need;
    3. perform regional needs assessments to identify existing resources and gaps;
    4. develop an area plan with goals, objectives, and performance measures, and a corresponding budget, and submit them to the State Unit on Aging for approval;
    5. concentrate resources, build community partnerships, and enter into cooperate agreements with agencies and organizations for delivery of services;
    6. designate community focal points for colocation of supports and services for older Vermonters; and
    7. conduct outreach activities to identify individuals eligible for assistance.
  2. In addition to the duties described in subsection (a) of this section, the area agencies on aging shall:
    1. promote the principles established in section 6202 of this chapter across the agencies' programs and shall collaborate with stakeholders to educate the public about the importance of each principle;
    2. promote collaboration with a network of service providers to provide a holistic approach to improving health outcomes for older Vermonters; and
    3. use their existing area plans to facilitate awareness of aging issues, needs, and services and to promote the system principles expressed in section 6202 of this chapter.

      Added 2019, No. 156 (Adj. Sess.), § 1, eff. Oct. 5, 2020.

§ 6206. Plan for comprehensive and coordinated system of services, supports, and protections.

  1. At least once every four years, the Department of Disabilities, Aging, and Independent Living shall adopt a State Plan on Aging, as required by the Older Americans Act. The State Plan on Aging shall describe a comprehensive and coordinated system of services, supports, and protections for older Vermonters that is consistent with the principles set forth in section 6202 of this chapter and sets forth the nature, extent, allocation, anticipated funding, and timing of services for older Vermonters. The State Plan on Aging shall also include the following categories:
    1. priorities for continuation of existing programs and development of new programs;
    2. criteria for receiving services or funding;
    3. types of services provided; and
    4. a process for evaluating and assessing each program's success.
    1. The Commissioner shall determine priorities for the State Plan on Aging based on: (b) (1)  The Commissioner shall determine priorities for the State Plan on Aging based on:
      1. information obtained from older Vermonters, their families, and their guardians, if applicable, and from senior centers and service providers;
      2. a comprehensive needs assessment that includes:
        1. demographic information about Vermont residents, including older Vermonters, family caregivers, and kinship caregivers;
        2. information about existing services used by older Vermonters, family caregivers, and kinship caregivers;
        3. characteristics of unserved and underserved individuals and populations; and
        4. the reasons for any gaps in service, including identifying variations in community needs and resources;
      3. a comprehensive evaluation of the services available to older Vermonters across the State, including home- and community-based services, residential care homes, assisted living residences, nursing facilities, senior centers, and other settings in which care is or may later be provided; and
      4. identification of the additional needs and concerns of older Vermonters, their families, and their caregivers in the event of a public health crisis, natural disaster, or other emergency situation.
    2. Following the determination of State Plan on Aging priorities, the Commissioner shall consider funds available to the Department in allocating resources.
  2. At least 60 days prior to adopting the proposed plan, the Commissioner shall submit a draft to the Department's Advisory Board established pursuant to section 505 of this title for advice and recommendations. The Advisory Board shall provide the Commissioner with written comments on the proposed plan.
  3. The Commissioner may make annual revisions to the plan as needed. The Commissioner shall submit any proposed revisions to the Department's Advisory Board for comment within the time frames established in subsection (c) of this section.
  4. On or before January 15 of each year, and notwithstanding the provisions of 2 V.S.A. § 20(d) , the Department shall report to the House Committee on Human Services, the Senate Committee on Health and Welfare, and the Governor regarding:
    1. implementation of the plan;
    2. the extent to which the system principles set forth in section 6202 of this chapter are being achieved;
    3. based on both qualitative and quantitative data, the extent to which the system has been successful in targeting services to individuals with the greatest economic and social need;
    4. the sufficiency of the provider network and any workforce challenges affecting providers of care or services for older Vermonters; and
    5. the availability of affordable and accessible opportunities for older Vermonters to engage with their communities, such as social events, educational classes, civic meetings, health and exercise programs, and volunteer opportunities.

      Added 2019, No. 156 (Adj. Sess.), § 1, eff. Oct. 5, 2020.

History

Effective date; applicability. 2019, No. 156 (Adj. Sess.), § 8 provides: "This act shall take effect on passage [October 5, 2020], except that in Sec. 1, 33 V.S.A. § 6206 (plan for comprehensive and coordinated system of services, supports, and protections) shall apply to the State Plan on Aging taking effect on October 1, 2022."

CHAPTER 63. HOME CARE PROGRAMS

Subchapter 1. Home Care Services

§§ 6301-6303. Repealed. 2005, No. 57, § 7, eff. June 13, 2005.

History

Former §§ 6301-6303. Former § 6301, relating to definitions of home care services, was derived from 1985, No. 129 (Adj. Sess.), § 2.

Former § 6302, relating to the home care services program, was derived from 1985, No. 129 (Adj. Sess.), § 3.

Former § 6303, relating to biennial report to House and Senate committees, was derived from 1985, No. 129 (Adj. Sess.), § 4.

Subchapter 1A. General Provisions

§ 6301. Policy.

It is the policy of the State of Vermont to ensure that all residents in every town within the State have access to comprehensive, medically necessary home health services without regard to their ability to pay for those services and to ensure that such services are delivered in an efficient and cost-effective manner, under a regulatory framework designed to control costs and ensure access to high quality home health services based on a model that promotes cooperation and nonduplication of services, rather than unregulated competition.

Added 2005, No. 57 , § 8, eff. June 13, 2005.

§ 6302. Definitions.

As used in this subchapter, unless otherwise indicated:

  1. "Family member" means an individual who is related to a person by blood, civil marriage, civil union, or adoption, or who considers himself or herself to be family based upon bonds of affection, and who currently shares a household with such a person or has, in the past, shared a household with that person. For purposes of this definition, the phrase "bonds of affection" means enduring ties that do not depend on the existence of an economic relationship.
  2. "Home health agency" means a for-profit or nonprofit health care facility providing part-time or intermittent skilled nursing services and at least one of the following other therapeutic services made available on a visiting basis, in a place of residence used as a patient's home: physical, speech, or occupational therapy; medical social services; home health aide services; or other non-nursing therapeutic services, including the services of nutritionists, dieticians, psychologists, and licensed mental health counselors.
  3. "Home health services" means activities and functions of a home health agency, including nurses, home health aides, physical therapists, occupational therapists, speech therapists, medical social workers, or other non-nursing therapeutic services directly related to care, treatment, or diagnosis of patients in the home.

    Added 2005, No. 57 , § 8, eff. June 13, 2005.

History

2009 In subdiv. (1), substituted "civil marriage” for "marriage” in the first sentence in accordance with 2009, No. 3 , § 12a.

§ 6303. Home health services; local plans; board composition.

  1. Consistent with the requirements of this section, the Commissioner of Disabilities, Aging, and Independent Living shall adopt by rule minimum program standards for the purpose of providing quality oversight of the home health agencies authorized to provide home health services under this subchapter. The minimum program standards shall include performance standards, quality measures, grievance and complaint procedures, patient safety standards, consumer input mechanisms, accessibility standards, medical necessity standards, and practices to ensure confidentiality of patient records. The rules shall also include minimum program standards to ensure home health agencies do not discriminate in the provision of services based on income, funding source, geographic status, or severity of health needs and to ensure the attainment or continuance of universal access to medically necessary home health services.
  2. Designated home health agencies shall engage in planning and needs assessment processes as directed by State and federal law, which may include participating in the development of the Health Resource Allocation Plan published pursuant to 18 V.S.A. § 9405 and the community health needs assessment conducted in accordance with 26 U.S.C. § 501(r) (3).
  3. On or before January 1, 2008, the board of each nonprofit designated home health agency shall be representative of the demographic makeup of the area or areas served by the agency or by the health care facility governed by the board. A majority of the members of the board shall be composed of individuals who have received or currently are receiving services from the agency or from the health care facility governed by the board and family members of individuals who have received or currently are receiving such services. The board president shall survey board members annually and certify to the Commissioner that the composition of the board meets the requirements of this subsection. The composition of the board shall also be confirmed by the agency's annual independent audit. The board shall have overall responsibility and control of the planning and operation of the home health agency, including development of the local community services plan.
  4. On or before January 1, 2008, each for-profit designated home health agency shall have an advisory board, which shall be representative of the demographic makeup of the area or areas served by the agency. A majority of the members of the advisory board shall be composed of individuals who have received or currently are receiving services from the agency and family members of individuals who have received or currently are receiving such services. The advisory board president shall survey board members annually and certify to the Commissioner that the composition of the board meets the requirements of this subsection. The composition of the board shall also be confirmed by the agency's annual independent audit. The advisory board shall meet at least twice per year and shall advise the agency's board of directors with respect to planning and operation of the home health agency, patient needs, and development of the local community services plan.
  5. [Repealed.]

    Added 2005, No. 57 , § 8, eff. June 13, 2005; amended 2009, No. 33 , § 83; 2015, No. 11 , § 38; 2019, No. 156 (Adj. Sess.), § 7a, eff. Oct. 5, 2020.

History

Amendments--2019 (Adj. Sess.). Subsec. (b): Rewrote subsection.

Amendments--2015. Subsec. (a): Substituted "measures" for "indicators" preceding "grievance" in the second sentence.

Amendments--2009. Subsec. (e): Repealed.

§ 6304. Designation; geographic service areas.

  1. The Commissioner shall specify by rule standards and procedures for home health agency designation, redesignation, and designation revocation. The designation shall provide each designated agency a franchise to provide home health services within one or more geographic service areas within which it shall have the obligation and responsibility of providing home health services for four years, except as provided in subsection (d) of this section. No home health agency shall render home health services to patients residing in a designated service area without being designated by the Commissioner to serve patients in that service area.
  2. Initial designations shall reflect the geographic service areas of existing home health agencies and any agencies contained in a certificate of need granted under 18 V.S.A. chapter 221 prior to or following June 13, 2005, provided the certificate of need, if not yet approved, was pending on June 13, 2005. The initial geographic service areas shall include:
    1. Addison County Home Health & Hospice, Inc.: the cities and towns of Addison County, with the exception of Hancock and Granville.
    2. VNA & Hospice of Southwestern Vermont Health Care, Inc.: the towns of Pownal, Bennington, Woodford, Shaftsbury, and Glastenbury.
    3. Franklin County Home Health Agency, Inc.: the cities and towns of Franklin County.
    4. VNA of Chittenden and Grand Isle Counties, Inc.: the cities and towns of Chittenden and Grand Isle counties.
    5. Lamoille Home Health Agency, Inc. d/b/a Lamoille Home Health & Hospice: the cities and towns of Lamoille County.
    6. Central Vermont Home Health & Hospice, Inc.: the cities and towns of Washington County and the towns of Orange, Williamstown, and Washington.
    7. Dorset Nursing Association, Inc.: the towns of Dorset, Rupert, and Pawlet.
    8. Rutland Area VNA & Hospice, Inc.: the cities and towns of Rutland County, with the exception of Pawlet.
    9. Manchester Health Services, Inc.: the towns of Manchester, Arlington, Sunderland, and Sandgate.
    10. Northern Counties Health Care, Inc., d/b/a Caledonia Home Health Care & Hospice: the cities and towns of Caledonia County and the towns of Concord, Lunenburg, Victory, Granby, Guildhall, Maidstone, East Haven, and Greensboro.
    11. Orleans Essex VNA & Hospice, Inc.: the cities and towns of Orleans County with the exception of Greensboro and the towns, gores, and grants of Norton, Canaan, Averill, Lewis, Lemington, Bloomfield, Brunswick, Brighton, Ferdinand, Avery's Gore, Warren's Gore, and Warner's Grant.
    12. VNA & Hospice of Vermont and New Hampshire, Inc.: the cities and towns of Windsor County, Windham County, Orange County (with the exception of the towns of Orange, Washington, and Williamstown) and the towns of Hancock, Granville, Searsburg, Readsboro, Stamford, Landgrove, Winhall, and Peru.
  3. Designations for new home health agencies shall be established pursuant to certificates of need approved by the Green Mountain Care Board. Thereafter, designations shall be subject to the provisions of this subchapter.
  4. The initial designations made under subsection (b) of this section shall expire according to staggered terms prescribed by the Commissioner.
  5. Agencies seeking redesignation to continue providing home health services shall file an application for redesignation in a form and manner prescribed by the Commissioner.
  6. In reviewing applications from agencies seeking to expand or reduce the offering of home health services, the Commissioner shall determine whether the application is consistent with the Health Resource Allocation Plan established under 18 V.S.A. § 9405 . In addition, the Commissioner shall use the data collected under subsection 6305(b) of this title when reviewing any applications for additional home health agencies to operate in any area of the State.
  7. The Commissioner shall adopt by rule standards and procedures for designation revocation. In particular, an agency's designation shall be revoked if:
    1. the local community services plan is inadequate to meet the needs of the area served by the home health agency;
    2. the agency, for reasons other than the lack of resources, has failed or refused to implement an otherwise adequate local community services plan; or
    3. the agency has failed to meet the performance standards adopted under this subchapter, has been given written notice of the performance deficiency, and has failed to remediate the deficiency within the time specified in the notice.
  8. Nothing in this subchapter shall be construed to prohibit collaboration among two or more such home health agencies in delivering needed services to patients pursuant to an affiliation, sharing, or other agreement under appropriate circumstances approved by the Commissioner under section 6306 of this title.

    Added 2005, No. 57 , § 8, eff. June 13, 2005; amended 2013, No. 79 , § 49c.

History

2021 In subsec. (b), substituted "June 13, 2005" for "the effective date of this section" and for "the effective date" in the first sentence.

- 2012. In subsec. (c), substituted "commissioner of financial regulation" for "commissioner of banking, insurance, securities, and health care administration" in accordance with 2011, No. 78 (Adj. Sess.), § 2.

Amendments--2013. Subsec. (c): Substituted "Green Mountain Care Board" for "commissioner of financial regulation" following "the".

§ 6305. Review of access, cost, and quality issues; remediation process.

  1. The Commissioner shall exercise such duties and responsibilities as shall be necessary for the implementation of this subchapter and for the active, ongoing supervision of the activities of the home health agencies under this subchapter.
  2. In a form and manner and at intervals prescribed by the Commissioner, the Commissioner shall collect and analyze data regarding access to and the cost and quality of home health services in Vermont. Such data shall include information on complaints, waiting lists, numbers of individuals ineligible for services, numbers of individuals eligible for but not provided services, numbers of patients served under 65 years of age and 65 years of age and over, total number of visits and hours provided to patients by each of the existing home health agencies; the results of patient surveys conducted by the home health agencies; data pertaining to federal and State surveys; scoring by any national accrediting organization; charitable and subsidized programs and services for uninsured or low income persons in their respective communities; copies of audited financial statements and annual cost reports; and any other quality measures or data deemed relevant by the Commissioner to monitor and evaluate access to and the cost and quality of home health services by the designated home health agencies.
  3. The Commissioner shall consider the data collected under subsection (b) of this section in undertaking active, ongoing supervision to monitor performance of the designated home health agencies with respect to access, cost, and quality of home health services.
  4. If the Commissioner determines that a home health agency has failed to comply with any performance standards established by the Commissioner related to access, cost, or quality issues in any area of the State, or has violated a rule or provision of this subchapter, the Commissioner may investigate and enforce the provisions of this subchapter pursuant to the authority and procedures conferred upon the Commissioner under chapter 71 of this title as if the home health agency were a nursing home, except that the Commissioner shall adopt by rule penalties specific to home health agencies.

    Added 2005, No. 57 , § 8, eff. June 13, 2005; amended 2015, No. 11 , § 39; 2021, No. 20 , § 337.

History

Amendments--2021. Subsec. (b): In the second sentence, deleted "and over" preceding the first instance of "65 years of age" and inserted "and 65 years of age and over" thereafter.

Amendments--2015. Subsec. (b): Substituted "over 65 years of age" for "over the age of 65" and "measures" for "indicators" following "other quality" in the second sentence.

§ 6306. Collaboration and shared service agreements.

  1. In order to further the State's goals of facilitating universal access to a full range of quality home health services at the lowest practicable cost throughout the State, the home health agencies are authorized and encouraged by the General Assembly to enter into and perform the following types of cooperative arrangements among two or more agencies:
    1. agreements or understandings to pool or share one or more administrative functions, services, or expenses;
    2. agreements or understandings to pool or share certain staffing, including skilled nursing and other personnel;
    3. group purchasing arrangements designed to obtain the benefits of volume discounts and achieve other cost savings and efficiencies for the benefit of consumers;
    4. agreements with managed care plans or other third-party payers, at their request and on a nonexclusive basis, to provide their members with prescribed home health services on discounted groupwide or statewide rates, terms, and conditions;
    5. agreements or understandings to provide home health services, on an occasional or sporadic basis, to patients located in the designated service area of another home health agency due to special needs or other exceptional circumstances preventing the prompt and efficient servicing of such patients by that other home health agency or where otherwise necessary to achieve the purposes of this subchapter; and
    6. agreements related to the sharing of information and technology.
  2. No agreement or understanding of the types specified in subsection (a) of this section, which are entered into subsequent to June 13, 2005, shall be valid or effective unless and until it has received the written approval of the Commissioner. Any such agreement or understanding shall be submitted to the Commissioner for approval or disapproval within 30 days of execution, and the Commissioner shall have 90 days from receipt of such filing within which to approve or disapprove the agreement.
  3. Any and all agreements or understandings of the types specified in subsection (a) of this section, which have been entered into prior to June 13, 2005, shall be valid and effective for 12 months following June 13, 2005 but not thereafter, unless they have received within that 12-month period the written approval of the Commissioner. The Commissioner shall have 90 days from receipt of such filing within which to approve or disapprove the agreement.
  4. In rendering a decision on any application submitted under subsection (b) or (c) of this section, the Commissioner shall actively scrutinize the terms of the proposed agreement and consider all relevant facts and circumstances surrounding the agreement, as determined in the Commissioner's discretion and pursuant to procedures specified by rule by the Commissioner. The Commissioner shall approve the agreement only if the Commissioner determines that it is in the public interest and is consistent with the purposes and policies set forth in this subchapter, including ensuring that all residents of the State have access to quality home health services delivered in an efficient and cost-effective manner.
  5. Agreements or understandings to pool or share certain staffing, including skilled nursing and other personnel, entered into on a temporary basis, as that term may be defined by the Commissioner, to meet the particular needs of an agency's patients and avoid temporary gaps in services shall be valid and effective without the necessity of obtaining approval by the Commissioner under subsection (b) or (c) of this section.
  6. In authorizing the agreements and understandings of the types specified in subsection (a) of this section and the activities conducted under those agreements and understandings, the General Assembly intends that its action have the effect of permitting and granting State action immunity for any actions that might otherwise be considered to be in violation of State or federal antitrust laws, in order to accomplish the public policy objectives of this subchapter.

    Added 2005, No. 57 , § 8, eff. June 13, 2005; amended 2021, No. 20 , § 338.

History

2021 In subsec. (b), substituted "June 13, 2005” for "the effective date of this subchapter” and in subsec. (c), substituted "June 13, 2005” for "the effective date of this subsection” and "the effective date of this subchapter”.

Amendments--2021. Subsec. (f): Substituted "under those agreements and understandings" for "thereunder" following "conducted".

§ 6307. Contracts with nondesignated agencies.

The Commissioner may enter into agreements with home health agencies or with any public or private agency for the purpose of establishing specialized home health services needed but not available from the designated home health agencies.

Added 2005, No. 57 , § 8, eff. June 13, 2005.

§ 6308. Complaint process.

The Commissioner shall establish by rule standards and procedures ensuring that each designated home health agency has in place sufficient minimum grievance procedures allowing recipients of home health services, their family members, and employees of a home health agency to file complaints about access to or the cost or quality of home health services, or about other matters related to the operations of the home health agency. In addition, the rules shall ensure that the Department of Disabilities, Aging, and Independent Living establishes and maintains an external complaint process for clients, their family members, and employees of a home health agency, including a toll-free telephone line dedicated to receiving consumer complaints.

Added 2005, No. 57 , § 8, eff. June 13, 2005.

Subchapter 2. Attendant Care Services

§ 6321. Attendant care services.

  1. As used in this section:
    1. "Attendant care services" means one or more of the following types of care or service provided for compensation: assistance with personal care, including dressing, bathing, shaving, and grooming, and assistance with eating, meal preparation, and ambulation.  Recipients of attendant care services shall have the opportunity to hire, train, and terminate the employment of attendants as necessary, establish work schedules, manage the services, and oversee payments of attendants and recordkeeping.
    2. "Group-directed attendant care" means attendant care services provided by one or more attendants to a group of unrelated individuals who reside in the same residence.
    3. "Personal services" means attendant care services provided to a Medicaid-eligible individual who is an elder or has a disability in his or her home, which are necessary to avoid institutionalization.
    4. "Participant-directed attendant care" means attendant care services for an individual who has a permanent and severe disability who requires service in at least two activities of daily living in order to live independently.
  2. The Department shall establish an Attendant Care Services Program to assist eligible individuals to gain or retain their independence.  The Attendant Care Services Program shall include a Participant-Directed Attendant Care Program, a Group-Directed Attendant Care Program, and a personal services program.
  3. Information received or compiled by the Department with respect to individuals using attendant care services shall be confidential.
  4. The Commissioner shall adopt rules to implement the provisions of this section, including eligibility criteria for the programs, criteria for determining service needs, rules relating to control and oversight of services by beneficiaries of a program, and procedures for handling and maintaining confidential information. Prior to filing a proposed rule, the Commissioner shall seek input from individuals with disabilities, elders, and organizations that represent such individuals.
  5. Grievances brought under this section shall be heard by the Human Services Board.
  6. Workers who provide attendant care, as defined in program rules of the Department of Disabilities, Aging, and Independent Living, personal care, companion care, respite care, or support services to persons who receive financial assistance from the Agency of Human Services through its departments and offices, and whose payroll service is provided directly by the State or by an intermediary payroll service organization acting under the authority of the State are exempt from 21 V.S.A. § 342 and shall not be construed as State employees except for purposes of 21 V.S.A. chapters 9 and 17.
  7. The State may provide workers' compensation coverage to workers who provide attendant care, personal care, companion care, respite care, or support services to persons who receive financial assistance from the Agency of Human Services through programs administered by its departments and offices, and whose payroll service is provided directly by the State or by an intermediary payroll service organization acting under the authority of the State. The State or its intermediary payroll service organization shall be considered a single entity for purposes of purchasing a single workers' compensation insurance policy providing coverage for such workers.
  8. Subsections (f) and (g) of this section are intended to permit the State to provide workers' compensation and unemployment compensation and shall not be considered for any other purposes.

    Added 1989, No. 75 , § 1; amended 2003, No. 122 (Adj. Sess.), § 147; 2005, No. 174 (Adj. Sess.), § 123; 2007, No. 192 (Adj. Sess.), § 6.019.1; 2013, No. 96 (Adj. Sess.), § 214.

History

Amendments--2013 (Adj. Sess.). Subdiv. (a)(3): Substituted "a" for "an elderly or disabled" following "provided to" and inserted "who is an elder or has a disability" following "individual".

Subdiv. (a)(4): Substituted "an" for "permanently, severely disabled" following "services for" and inserted "who has a permanent and severe disability" following "individual".

Subsec. (d): Substituted "elders" for "the elderly" following "disabilities,".

Amendments--2007 (Adj. Sess.). Subsec. (f): Amended generally.

Subsecs. (g) and (h): Added.

Amendments--2005 (Adj. Sess.). Subsec. (f): Inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities".

Amendments--2003 (Adj. Sess.). Subsec. (f): Added.

Prior law. 33 V.S.A. § 2595a.

CHAPTER 65. MEDICARE AND GENERAL ASSISTANCE BENEFICIARIES; BALANCE BILLING

Sec.

§ 6501. Definitions.

As used in this chapter:

  1. "Balance bill" means to charge to or collect from a Medicare or General Assistance beneficiary any amount in excess of the reasonable charge for that service as determined by the U.S. Secretary of Health and Human Services or the Commissioner of Vermont Health Access, as the case may be.
  2. "General Assistance beneficiary" means a person who receives assistance under chapter 21 of this title.
  3. "Medicare beneficiary" means a person who is a beneficiary of health insurance under Title XVIII of the Social Security Act.
  4. "Physician" has the same meaning as in 42 U.S.C. § 1395x (r).

    Added 1987, No. 51 , § 1; amended 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 124; 2009, No. 156 (Adj. Sess.), § I.76; 2021, No. 20 , § 339.

History

Reference in text. Title XVIII of the Social Security Act, referred to in subdiv. (3), is codified as 42 U.S.C. § 1395 et seq.

2013 In the introductory sentence, substituted "As used in" for "For purposes of" preceding "this chapter" to conform to V.S.A. style.

Revision note - In subdiv. (2), substituted "chapter 21 of this title" for "chapter 38 of this title" in view of the recodification of this title by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments--2021. Subdiv. (4): Substituted "has the same meaning as in" for "shall be defined as that word is defined for purposes of Medicare under" preceding "42 U.S.C. § 1395x(r)".

Amendments--2009 (Adj. Sess.) Subdiv. (1): Substituted "the commissioner of Vermont health" for "the director of the office of Vermont health".

Amendments--2005 (Adj. Sess.). Subdiv. (1): Substituted "director of the office of Vermont" for "Vermont commissioner of prevention, assistance, transition, and" preceding "health access".

Amendments--1999 (Adj. Sess.). Subdiv. (1): Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare".

Prior law. 33 V.S.A. § 3091.

§ 6502. Balance billing prohibited.

A physician who agrees to treat a Medicare or General Assistance beneficiary shall not balance bill the beneficiary except as provided in section 6503 of this chapter.

Added 1987, No. 51 , § 1; amended 2021, No. 20 , § 340.

History

Amendments--2021. Deleted "hereinafter" preceding "provided" and inserted "in section 6503 of this chapter" thereafter.

Prior law. 33 V.S.A. § 3092.

§ 6503. Exceptions.

The provisions of section 6502 of this title shall not apply and the physician may balance bill a Medicare beneficiary if:

  1. During the calendar year prior to treatment, the Medicare beneficiary (or his or her spouse with whom he or she lived at any time during that year):
    1. received Social Security benefits or railroad retirement benefits (Tier I treated as Social Security) that were subject to federal income taxation; or
    2. did not receive Social Security benefits or railroad retirement benefits (Tier I treated as Social Security) but, had such benefits been received, they would have been subject to federal income taxation.
  2. The Medicare beneficiary refuses to sign the statement authorized by section 6504 of this title; or
  3. The service for which the beneficiary is to be billed is either an office or home visit.  Office or home visits are listed as procedure codes 90000 through 90170 in the Physicians' Current Procedural Terminology, Fourth Edition (1986) published by the American Medical Association, as amended annually.  Office or home visit codes for dentists, podiatrists, optometrists, and chiropractors shall be the same (or equivalent) procedure codes used for doctors of medicine or osteopathy.

    Added 1987, No. 51 , § 1.

History

Prior law. 33 V.S.A. § 3093.

§ 6504. Medicare beneficiary to sign statement.

Annually and prior to treatment, a physician may request that a Medicare beneficiary sign a statement prepared in accordance with this section to determine whether or not the beneficiary may be balance billed. The exceptions contained in subdivision 6503(1) of this title shall not apply if the physician does not request that the beneficiary sign the statement. The statement shall be prepared by the Department of Disabilities, Aging, and Independent Living, and shall incorporate the exceptions contained in subdivision 6503(1) of this title.

Added 1987, No. 51 , § 1; amended 1989, No. 219 (Adj. Sess.), § 9(a); 2005, No. 174 (Adj. Sess.), § 125.

History

Revision note. Substituted "department of rehabilitation and aging" for "office on aging" in the third sentence in view of Executive Order No. 70-89, which provided for the abolition of the office on aging and the transfer of the duties, responsibilities, and authority of that entity to the department of rehabilitation and aging as established by the order.

Amendments--2005 (Adj. Sess.). Inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities".

Amendments--1989 (Adj. Sess.). Substituted "department of aging and disabilities" for "department of rehabilitation and aging" in the third sentence.

Prior law. 33 V.S.A. § 3094.

§ 6505. Assistance with claims required.

A physician who agrees to treat a Medicare beneficiary shall prepare the Medicare claim for the beneficiary.

Added 1987, No. 51 , § 1.

History

Prior law. 33 V.S.A. § 3095.

§ 6506. Posting.

A physician who treats Medicare or General Assistance beneficiaries shall post a summary of the provisions of this chapter in a conspicuous place in his or her office. The summary shall include the statement that any person aggrieved by a physician's failure to comply with the provisions of this chapter may contact the Department of Disabilities, Aging, and Independent Living for assistance or file a complaint with the State Board of Medical Practice within the Department of Health and shall include toll-free telephone numbers to be used for these purposes. The summary shall be written by the Department of Disabilities, Aging, and Independent Living and distributed by the Secretary of State.

Added 1987, No. 51 , § 1; amended 1989, No. 219 (Adj. Sess.) § 9(a); 2005, No. 174 (Adj. Sess.), § 126; 2013, No. 131 (Adj. Sess.), § 81.

History

Revision note. Substituted "department of rehabilitation and aging" for "office on aging" in the second and third sentences in view of Executive Order No. 70-89, which provided for the abolition of the office on aging and the transfer of the duties, responsibilities, and authority of that entity to the department of rehabilitation and aging as established by the order.

Amendments--2013 (Adj. Sess.). Substituted "State Board of Medical Practice within the Department of Health" for "Division of Registration, Licensing and Secretarial Services within the Office of the Secretary of State" following "complaint with the".

Amendments--2005 (Adj. Sess.). Inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities" in two places.

Amendments--1989 (Adj. Sess.). Substituted "aging and disabilities" for "rehabilitation and aging" following "department of" in the second and third sentences.

Prior law. 33 V.S.A § 3096.

§ 6507. Administration; enforcement.

  1. A person aggrieved by a violation of the provisions of this chapter may file a complaint with the State Board of Medical Practice within the Department of Health. The matter shall be investigated by the Board and shall be subject to the provisions of 3 V.S.A. chapter 25, relating to contested cases.
  2. The Board of Medical Practice may, after hearing, impose an administrative penalty of not more than $50.00 against any physician who violates the provisions of section 6505 or 6506 of this title relating to assistance and posting.
  3. The Board of Medical Practice may, after hearing, order a physician who balance billed in violation of the provisions of this chapter to make restitution of any monies received from a Medicare or General Assistance beneficiary as a result of such billing.

    Added 1987, No. 51 , § 1; amended 2013, No. 131 (Adj. Sess.), § 82, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "State Board of Medical Practice within the Department of Health" for "division of registration, licensing and secretarial services within the office of the secretary of state" at the end of the first sentence, "investigated" for "heard" following "matter shall be", "Board" for "secretary of state, or a hearing officer designated by the secretary," preceding "and shall be", and "3 V.S.A. chapter 25," for "chapter 25 of Title 3" following "provisions of".

Subsec. (b): Substituted "Board of Medical Practice" for "secretary of state or the hearing officer" following "The" and "section" for "sections" following "provisions of".

Subsec. (c): Substituted "Board of Medical Practice" for "secretary of state or the hearing officer" following "The".

Prior law. 33 V.S.A. § 3097.

§ 6508. Repealed. 2013, No. 131 (Adj. Sess), § 83, eff. May 20, 2014; 2013, No. 142 (Adj. Sess.), § 100.

History

Former § 6508. Former § 6508, relating to Medicare billing report required, was derived from 1987, No. 51 , § 1 and amended by 1989, No. 219 (Adj. Sess.), § 9(a) and 2005, No. 174 (Adj. Sess.), § 127.

CHAPTER 67. MEDICARE ADVOCACY PROGRAM

Sec.

History

Legislative findings. 1989, No. 259 (Adj. Sess.), § 1, provides: "The general assembly finds that each year hundreds of Vermont Medicare beneficiaries are unjustifiably denied Medicare coverage for necessary health care services and supplies. Those Medicare beneficiaries who are also eligible for Medicaid, known as 'dual-eligibles', routinely turn to Medicaid to pay for the services and supplies they need. Since Medicaid is a joint federal-state program, while Medicare is wholly federal, these Medicare denials have a tremendous impact on the state Medicaid program. Reversing these unjustified Medicare denials will provide Vermont Medicare beneficiaries the benefits to which they are entitled and save the state substantial Medicaid dollars."

§ 6701. Definitions.

As used in this chapter:

  1. "Dual eligible individual" means an individual who is a beneficiary of both Medicaid and Medicare.
  2. "Medicaid" means the medical assistance program authorized under chapter 19 of this title.
  3. "Medicare" means the health insurance programs authorized under Title XVIII of the Social Security Act.

    Added 1989, No. 259 (Adj. Sess.), § 2.

History

Reference in text. Title XVIII of the Social Security Act, referred to in subdiv. (3), is codified as 42 U.S.C. § 1395 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3731 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

§ 6702. Program established.

A Medicare Advocacy Program is established for the purpose of ensuring through legal and other advocacy services that dual eligible individuals receive the Medicare coverage to which they are entitled. In addition to serving individual beneficiaries, the Program may participate on behalf of dual eligible individuals in reform litigation and Medicare related administrative or judicial proceedings.

Added 1989, No. 259 (Adj. Sess.), § 2.

History

Codification. This section was originally enacted as 33 V.S.A. § 3732 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

§ 6703. Contract for services.

  1. Subject to the provisions of subsection (b) of this section, the Commissioner of Vermont Health Access shall contract on an annual basis with individuals or private organizations to provide services authorized by this chapter to dual eligible individuals including pursuit of subrogation claims under section 6705 of this chapter.
  2. The Commissioner shall not be required to enter into contracts under this section if both of the following conditions are met:
    1. The amount of the State's share of recoveries to the Medicaid program from awards obtained under this chapter during the preceding year did not exceed the payments to the contractors during that year.
    2. The Commissioner determines that the program is not accomplishing its goal of protecting dual eligible individuals from improper denials of Medicare coverage. The Commissioner shall base this determination on information obtained from the contractors, providers of health care, area agencies on aging, and other individuals and organizations affected by the program.

      Added 1989, No. 259 (Adj. Sess.), § 2; amended 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 128; 2009, No. 33 , § 68; 2009, No. 156 (Adj. Sess.), § I.77; 2021, No. 20 , § 341.

History

Codification. This section was originally enacted as 33 V.S.A. § 3733 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2021. Subsec. (b): Amended generally.

Amendments--2009 (Adj. Sess.) Subsec. (a): Substituted "the commissioner of Vermont health" for "the director of the office of Vermont health".

Subsec. (b): Substituted "commissioner" for "director" throughout the subsection.

Amendments--2009. Subdiv. (b)(2): Deleted the third sentence.

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "director of the office of Vermont" for "commissioner of prevention, assistance, transition, and" preceding "health access".

Subsec. (b): Substituted "director" for "commissioner" preceding "shall".

Subdiv. (b)(2): Substituted "director" for "commissioner" preceding "determines" and "shall", respectively.

Amendments--1999 (Adj. Sess.). Subsec. (a): Substituted "commissioner of prevention, assistance, transition, and health access" for "commissioner of social welfare".

§ 6704. Charges.

Dual eligible individuals shall not be charged for services provided under this chapter.

Added 1989, No. 259 (Adj. Sess.), § 2.

History

Codification. This section was originally enacted as 33 V.S.A. § 3734 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

§ 6705. Subrogation.

  1. Upon furnishing medical assistance under chapter 19 of this title to any individual, the Department of Vermont Health Access shall be subrogated, to the extent of the expenditure for medical care furnished, to any rights such individual may have to third-party reimbursement for such care.
  2. The Department of Vermont Health Access or its designee shall be entitled to obtain from any medical service provider any records of the treatment of any individual covered by subsection (a) of this section that are in any way relevant to the treatment paid for through medical assistance without regard to any other privilege or right of confidentiality or privacy that may exist. The Department shall ensure that any records obtained are not released to any other individual, agency, or other entity except as necessary to pursue the Department's rights of subrogation.
  3. The Department of Vermont Health Access may contract with a private attorney or attorneys, or other private persons, for the purpose of obtaining third-party reimbursement for Medicaid expenditures under this section. In awarding contracts under this section, the Department shall give preference to bidders who maintain a place of business in this State.

    Added 1989, No. 259 (Adj. Sess.), § 2; amended 1995, No. 152 (Adj. Sess.), § 5; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 129; 2009, No. 156 (Adj. Sess.), § I.78; 2021, No. 20 , § 342.

History

Codification. This section was originally enacted as 33 V.S.A. § 3735 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2021. Subsec. (b): Substituted "that" for "which" twice in the first sentence; and, in the second sentence, deleted "insofar" following "except" and "is" preceding "necessary".

Amendments--2009 (Adj. Sess.) Substituted "department" for "office" and "department's" for "office's" wherever it appeared throughout the section.

Amendments--2005 (Adj. Sess.). Substituted "office of Vermont" for "department of prevention, assistance, transition, and" preceding "health access" in subsecs. (a) and (c); in subsec. (b), substituted "office of Vermont health access" for "department", "office" for "department" and "office's" for "department's"; and in subsec. (c), substituted "office" for "department".

Amendments--1999 (Adj. Sess.). Substituted "department of prevention, assistance, transition, and health access" for "department of social welfare" in subsecs. (a) and (c).

Amendments--1995 (Adj. Sess.) Subsec. (c): Added.

§ 6706. Independent analysis.

The Commissioner of Financial Regulation shall adopt rules to ensure an in-depth independent analysis by an expert, or experts, of proposed Medicare supplement insurance policy rate increases. This analysis shall be performed only when the composite average rate increase requested by insurers with 5,000 or more lives in the Vermont Medicare supplement insurance policy market exceeds three percent, or when the Commissioner finds that the proposed premium and policy changes will have a comparable adverse impact on availability or cost of coverage, or when it otherwise appears to be in the best interests of the insureds. A composite average rate is the enrollment-weighted average rate increase of all plans offered by a carrier. The independent analyst shall be made available to the public during the analysis and for the purpose of providing assistance with and testimony in connection with Medicare supplement insurance policy rate increase proposals. The cost for the analysis shall be assessed to the affected policy or certificate holders.

Added 1989, No. 259 (Adj. Sess.), § 2; amended 1991, No. 251 (Adj. Sess.); 1995, No. 180 (Adj. Sess.), § 38(a); 1999, No. 43 , § 2; 2003, No. 18 , § 2; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012; 2021, No. 20 , § 343.

History

Codification. This section was originally enacted as 33 V.S.A. § 3736 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2021. Section amended generally.

Amendments--2011 (Adj. Sess.). Substituted "commissioner of financial regulation" for "commissioner of banking, insurance, securities, and health care administration".

Amendments--2003. Section amended generally.

Amendments--1999. Substituted "the increased premiums requested exceed $500,000.00, or when the commissioner finds that the proposed premium and policy changes will have a comparable adverse impact on availability or cost of coverage, or when it otherwise" for "it" and deleted "and shall be made available to the public" from the end of the second sentence and inserted "during the analysis, and" following "made available to the public" in the third sentence.

Amendments--1995 (Adj. Sess.) Substituted "commissioner of banking, insurance, securities, and health care administration" for "commissioner of banking, insurance, and securities" in the first sentence.

Amendments--1991 (Adj. Sess.). Added the third sentence.

CHAPTER 69. REPORTS OF ABUSE, NEGLECT, AND EXPLOITATION OF VULNERABLE ADULTS

History

General amendment. 2001, No. 135 (Adj. Sess.), § 17 provides: "In 33 V.S.A. chapter 69, §§ 6901-6941 (reports of abuse, neglect and exploitation), 'an elderly and disabled adult' is changed to 'a vulnerable adult'; 'elderly and disabled adults' is changed to 'vulnerable adults'; 'an elderly or disabled adult' is changed to 'a vulnerable adult'; 'the elderly or disabled adult' is changed to 'the vulnerable adult'; and 'elderly or disabled adults' is changed to 'vulnerable adults'."

Subchapter 1. Reports of Abuse of Vulnerable Adults

History

Amendments--2001 (Adj. Sess.) Act No. 135 (Adj. Sess.), § 17, substituted "Vulnerable Adults" for "Elderly and Disabled Adults" in the subchapter heading.

Amendments--1991 (Adj. Sess.) Act No. 180 (Adj. Sess.), § 3, designated the existing provisions of this chapter, consisting of sections 6901-6913, as subchapter 1 and added the subchapter heading.

§ 6901. Purpose.

The purpose of this chapter is to protect vulnerable adults whose health and welfare may be adversely affected through abuse, neglect, or exploitation; provide a temporary or permanent nurturing and safe environment for vulnerable adults when necessary; and for these purposes to require the reporting of suspected abuse, neglect, and exploitation of vulnerable adults and the investigation of such reports and provision of services, when needed; and to intervene in the family or substitute care situation only when necessary to ensure proper care and protection of a vulnerable adult or to carry out other statutory responsibilities.

Added 1979, No. 150 (Adj. Sess.); amended 1985, No. 78 , § 1; 2001, No. 135 (Adj. Sess.), § 17, eff. June 13, 2002.

History

Amendments--2001 (Adj. Sess.). Substituted "vulnerable adults" for "elderly and disabled adults" following "protect" and "environment for" and "a vulnerable adult" for "an elderly or disabled adult" following "protection of", respectively.

Amendments--1985. Section amended generally.

Prior law. 18 V.S.A. § 1150.

ANNOTATIONS

Cited. In re E.C., 188 Vt. 546, 1 A.3d 1007 (mem.) (2010).

§ 6902. Definitions.

As used in this chapter:

  1. "Abuse" means:
    1. Any treatment of a vulnerable adult that places life, health, or welfare in jeopardy or is likely to result in impairment of health.
    2. Any conduct committed with an intent or reckless disregard that such conduct is likely to cause unnecessary harm, unnecessary pain, or unnecessary suffering to a vulnerable adult.
    3. Unnecessary or unlawful confinement or unnecessary or unlawful restraint of a vulnerable adult.
    4. Any sexual activity with a vulnerable adult by a caregiver who volunteers for or is paid by a caregiving facility or program. This definition shall not apply to a consensual relationship between a vulnerable adult and a spouse, nor to a consensual relationship between a vulnerable adult and a caregiver hired, supervised, and directed by the vulnerable adult.
    5. Intentionally subjecting a vulnerable adult to behavior that should reasonably be expected to result in intimidation, fear, humiliation, degradation, agitation, disorientation, or other forms of serious emotional distress.
    6. Administration, or threatened administration, of a drug, substance, or preparation to a vulnerable adult for a purpose other than legitimate and lawful medical or therapeutic treatment.
  2. "Caregiver" means a person, agency, facility, or other organization with responsibility for providing subsistence or medical or other care to an adult who is an elder or has a disability, who has assumed the responsibility voluntarily, by contract, or by an order of the court; or a person providing care, including medical care, custodial care, personal care, mental health services, rehabilitative services, or any other kind of care provided that is required because of another's age or disability.
  3. "Commissioner" means the Commissioner of Disabilities, Aging, and Independent Living.
  4. "Department" means the Vermont Department of Disabilities, Aging, and Independent Living.
  5. "Employer" means a person or organization who employs or contracts with one or more individuals to care for vulnerable adults, on either a paid or volunteer basis.
  6. "Exploitation" means:
    1. willfully using, withholding, transferring, or disposing of funds or property of a vulnerable adult without or in excess of legal authority for the wrongful profit or advantage of another;
    2. acquiring possession or control of or an interest in funds or property of a vulnerable adult through the use of undue influence, harassment, duress, or fraud;
    3. the act of forcing or compelling a vulnerable adult against his or her will to perform services for the profit or advantage of another;
    4. any sexual activity with a vulnerable adult when the vulnerable adult does not consent or when the actor knows or should know that the vulnerable adult is incapable of resisting or declining consent to the sexual activity due to age or disability or due to fear of retribution or hardship, whether or not the actor has actual knowledge of vulnerable status.
    1. "Neglect" means purposeful or reckless failure or omission by a caregiver to: (7) (A) "Neglect" means purposeful or reckless failure or omission by a caregiver to:
      1. provide care or arrange for goods or services necessary to maintain the health or safety of a vulnerable adult, including food, clothing, medicine, shelter, supervision, and medical services, unless the caregiver is acting pursuant to the wishes of the vulnerable adult or his or her representative, or an advance directive, as defined in 18 V.S.A. § 9701 ;
      2. make a reasonable effort, in accordance with the authority granted the caregiver, to protect a vulnerable adult from abuse, neglect, or exploitation by others;
      3. carry out a plan of care for a vulnerable adult when such failure results in or could reasonably be expected to result in physical or psychological harm or a substantial risk of death to the vulnerable adult, unless the caregiver is acting pursuant to the wishes of the vulnerable adult or his or her representative, or an advance directive, as defined in 18 V.S.A. § 9701 ; or
      4. report significant changes in the health status of a vulnerable adult to a physician, nurse, or immediate supervisor, when the caregiver is employed by an organization that offers, provides or arranges for personal care.
    2. Neglect may be repeated conduct or a single incident that has resulted in or could be expected to result in physical or psychological harm, as a result of subdivision (A)(i), (ii), or (iii) of this subdivision (7).
  7. "Plan of care" includes a duly approved plan of treatment, protocol, individual care plan, rehabilitative plan, plan to address activities of daily living, or similar procedure describing the care, treatment, or services to be provided to address a vulnerable adult's physical, psychological, or rehabilitative needs.
  8. "Protective services" means services, action, or intervention that will, through voluntary agreement or through appropriate court action, prevent further neglect, abuse, or exploitation of a vulnerable adult. Such services may include supervision, guidance, counseling, petitioning for appointment of a guardian, and, when necessary, assistance in the securing of safe and sanitary living accommodations. However, nothing in this chapter gives the Commissioner authority to place the vulnerable adult in a State school or hospital, except pursuant to 18 V.S.A. chapter 181 or 206.
  9. "Representative" means a court-appointed guardian, or an agent acting under an advance directive executed pursuant to 18 V.S.A. chapter 231, unless otherwise specified in the terms of the advance directive.
  10. "Sexual activity" means a sexual act as defined in 13 V.S.A. § 3251 , other than appropriate medical care or personal hygiene, or lewd and lascivious conduct.
  11. "Substantiated report" means that the Commissioner or the Commissioner's designee has determined after the investigation that a report is based upon accurate and reliable information that would lead a reasonable person to believe that the vulnerable adult has been abused, neglected, or exploited.
  12. "Volunteer" means an individual who, without compensation, provides services through a private or public organization.
  13. "Vulnerable adult" means any person 18 years of age or older who:
    1. is a resident of a facility required to be licensed under chapter 71 of this title;
    2. is a resident of a psychiatric hospital or a psychiatric unit of a hospital;
    3. has been receiving personal care services for more than one month from a home health agency certified by the Vermont Department of Health or from a person or organization that offers, provides, or arranges for personal care; or
    4. regardless of residence or whether any type of service is received, is impaired due to brain damage, infirmities of aging, mental condition, or physical, psychiatric, or developmental disability:
      1. that results in some impairment of the individual's ability to provide for his or her own care without assistance, including the provision of food, shelter, clothing, health care, supervision, or management of finances; or
      2. because of the disability or infirmity, the individual has an impaired ability to protect himself or herself from abuse, neglect, or exploitation.

        Added 1979, No. 150 (Adj. Sess.); amended 1983, No. 203 (Adj. Sess.), § 1; 1985, No. 78 , § 2; 1993, No. 100 , § 1; 2001, No. 135 (Adj. Sess.), §§ 3, 17, eff. June 13, 2002; 2005, No. 174 (Adj. Sess.), § 130; 2013, No. 96 (Adj. Sess.), § 215; 2013, No. 131 (Adj. Sess.), § 84, eff. May 20, 2014; 2015, No. 23 , §§ 63, 64; 2015, No. 97 (Adj. Sess.), § 69; 2021, No. 20 , § 344.

History

2013 In accordance with 2013, No. 5 , § 4, deleted "but not limited to" following "including" in subdivs. (2) and (7)(A)(i), "but is not limited to" following "includes" in subdiv. (8), and "but not be limited to" following "may include" in subdiv. (9).

Revision note - Substituted "chapter 181 or chapter 206 of Title 18" for "chapter 181 of chapter 206 of this title" in subdiv. (9) in view of the recodification of this chapter by 1989, No. 148 (Adj. Sess.), §§ 2(a), 3.

Amendments--2021. Subdiv. (1)(A): Substituted "that" for "which" preceding "places"; and deleted "which" preceding "is likely".

Subdivs. (1)(E), (2), (7)(B): Substituted "that" for "which".

Subdiv. (7)(A)(iii): Inserted "an" preceding "advance directive".

Amendments--2015 (Adj. Sess.). Subdiv. (10): Substituted "advance directive" for "power of attorney".

Amendments--2015. Subdiv. (7): Corrected subdivision designation.

Subdiv. (10): Substituted "an advance directive executed pursuant to 18 V.S.A. chapter 231" for "a durable power of attorney for health care".

Amendments--2013 (Adj. Sess.). Subdiv. (4): Act 131 substituted "Vermont" for "State" preceding "Department of Disabilities".

Subdivs. (7)(A)(i) and (7)(A)(iii): Act 131 substituted "an advance directive" for "a terminal care document" following "representative, or" and "18 V.S.A. § 9701" for "subchapter 2 of chapter 111 of Title 18".

Subdiv. (9): Act 131 substituted "a vulnerable adult" for "vulnerable adults" at the end of the first sentence.

Subdiv. (2): Act 96 substituted "adult who is an elder or has a disability" for "elderly or disabled adult" following "care to an", and deleted "but not limited to" following "including".

Subdiv. (14)(D): Act 92 added "mental condition," following "aging," and substituted "psychiatric" for "mental" following "physical,".

Amendments--2005 (Adj. Sess.). Subdivs. (3) and (4): Inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities".

Amendments--2001 (Adj. Sess.) Section amended generally.

Amendments--1993. Rewrote subdivs. (1) and (2), added "of aging and disabilities" following "department" in subdiv. (3), rewrote subdivs. (4) and (7), deleted former subdiv. (8), redesignated former subdivs. (9) and (10) as subdivs. (8) and (9), respectively, deleted former subdiv. (11), redesignated former subdiv. (12) as subdiv. (10), and added new subdivs. (11) and (12).

Amendments--1985. Section amended generally.

Amendments--1983 (Adj. Sess). Subdiv. (5): Added.

Prior law. 18 V.S.A. § 1151.

ANNOTATIONS

Analysis

1. Legislative intent.

The purpose of 33 V.S.A. § 6902, the abuse statute, and the registry established by 33 V.S.A. § 6911 demonstrate that the Legislature did not intend permanently to identify and stigmatize a person who engages in abusive conduct, however minor or isolated, against an individual whose impairment is neither apparent nor known to the perpetrator. In re Tinker, 165 Vt. 621, 686 A.2d 946 (mem.) (1996).

2. Abuse.

Plain meaning of the statute that defines "abuse" as intentionally subjecting a vulnerable adult to behavior that should reasonably be expected to result in intimidation, fear, humiliation, degradation, agitation, disorientation, or other forms of serious emotional distress indicates that it has both subjective and objective elements. The mental element of the statute is subjective - the individual in question must have acted intentionally; the result of the individual's behavior is measured by an objective standard - whether it is reasonably to be expected that the individual's behavior will result in serious emotional distress in the vulnerable adult. In re E.C., 188 Vt. 546, 1 A.3d 1007 (mem.) (2010).

Statute that defines "abuse" as intentionally subjecting a vulnerable adult to behavior that should reasonably be expected to result in intimidation, fear, humiliation, degradation, agitation, disorientation, or other forms of serious emotional distress contains the terms "intimidation," "agitation," and "disorientation," among others, and importantly concludes with the phrase "or other forms of serious emotional distress." This catchall indicates that the Legislature intended that the results in the statutory list apply only if they rise to the level of "serious emotional distress." In re E.C., 188 Vt. 546, 1 A.3d 1007 (mem.) (2010).

It is not improper for the Human Services Board to consider a vulnerable adult's actual reaction as an important factor in reaching the decision not to substantiate a report of abuse against a petitioner. The application of an objective reasonableness test does not preclude the Board from considering the actual consequences of a petitioner's conduct to assist it in determining how a reasonable person would view such conduct. In re E.C., 188 Vt. 546, 1 A.3d 1007 (mem.) (2010).

Human Services Board properly found that petitioner did not abuse a disabled student by "dunking" him underwater when the student refused to do physical therapy exercises in a pool. The Board found that petitioner dunked the student three times, that the incident lasted less than 25 seconds, that the student was agitated prior to and during the dunking but not after the dunking, and that afterward he completed the remainder of his physical therapy program. In re E.C., 188 Vt. 546, 1 A.3d 1007 (mem.) (2010).

A report of abuse as defined by subdivision (1)(A) cannot be substantiated without evidence that the perpetrator knew, or should have known, of the alleged victim's status as an elderly or disabled adult. In re Tinker, 165 Vt. 621, 686 A.2d 946 (mem.) (1996).

3. Vulnerable adult.

Application of the doctrine of collateral estoppel was inappropriate with respect to the substantiation of a mother's abuse of her developmentally disabled daughter because the issues in a probate court proceeding involving her termination of guardianship over the daughter were separate and distinguishable, and the legal standards and burdens employed in each action were different. In re Harwood, 195 Vt. 7, 86 A.3d 976 (2013).

Evidence supported the trial court's conclusion that plaintiff was a vulnerable adult. She had significant impairments that had delayed her ability to understand, to express herself, and to handle her own affairs; she was under the age of majority when at least some of the alleged abusive and exploitative conduct took place; and she was the subject of a guardianship giving her parents broad powers over nearly all aspects of her life. Smith v. Wright, 194 Vt. 326, 79 A.3d 876 (2013).

There was no jurisdiction for an order against defendant under the Abuse of Vulnerable Adults statute because a mere listing of physical ailments, which many people suffer, was not sufficient to establish that plaintiff was unable to protect herself from abuse, neglect, or exploitation. Farr v. Searles, 180 Vt. 642, 910 A.2d 929 (mem.) (November 1, 2006).

Cited. Czechorowski v. State, 178 Vt. 524, 872 A.2d 883 (mem.) (March 22, 2005).

§ 6903. Reporting suspected abuse, neglect, and exploitation of vulnerable adults.

  1. Any of the following, other than a crisis worker acting pursuant to 12 V.S.A. § 1614 and the State Long-Term Care Ombudsman or a representative of the Office, as defined in section 7501 of this title, who knows of or has received information of abuse, neglect, or exploitation of a vulnerable adult or who has reason to suspect that any vulnerable adult has been abused, neglected, or exploited shall report or cause a report to be made in accordance with the provisions of section 6904 of this title within 48 hours:
    1. all employees, contractors, and grantees of the Agency of Human Services who are involved in caregiving;
    2. a physician, osteopath, chiropractor, physician assistant, nurse, medical examiner, licensed nursing assistant, emergency medical services personnel, dentist, or psychologist;
    3. a school teacher, school librarian, school administrator, school guidance counselor, school aide, school bus driver, or school employee or school contractor who works regularly with students;
    4. a mental health professional, social worker, person or organization that offers, provides, or arranges for personal care for vulnerable adults; caregiver employed by a vulnerable adult; employee of or contractor involved in caregiving for a community mental health center; law enforcement officer; or individual who works regularly with vulnerable adults and who is an employee of an adult day care center, area agency on aging, senior center, or meal program designed primarily to serve vulnerable adults;
    5. a hospital, nursing home, residential care home, home health agency, or any entity providing nursing or nursing-related services for remuneration; intermediate care facility for adults with developmental disabilities; therapeutic community residence, group home, developmental home, school or contractor involved in caregiving; or an operator or employee of any of these facilities or agencies.
  2. Any other concerned person not listed in subsection (a) of this section who knows of or has received a complaint of abuse, neglect, or exploitation of a vulnerable adult or who has reason to suspect that any vulnerable adult has been abused, neglected, or exploited may report or cause a report to be made in accordance with the provisions of section 6904 of this title.
  3. The identity of a person who makes a report under this section shall be kept confidential unless:
    1. the person making the report consents to disclosure;
    2. a judicial proceeding results from the report; or
    3. a court, after a hearing, finds probable cause to believe the report was not made in good faith and orders the Department to disclose the person's identity.

      Added 1979, No. 150 (Adj. Sess.); amended 1985, No. 78 , § 3; 1985, No. 151 (Adj. Sess.), § 15; 1985, No. 208 (Adj. Sess.), § 20, eff. June 30, 1986; 1989, No. 76 , § 1; 1993, No. 100 , § 2; 2001, No. 135 (Adj. Sess.), §§ 4, 17, eff. June 13, 2002; 2013, No. 34 , § 30a; 2013, No. 96 (Adj. Sess.), § 216; 2013, No. 131 (Adj. Sess.), § 85, eff. May 20, 2014; 2017, No. 23 , § 2.

History

2013 Substituted "physician assistant" for "physician's assistant" in subdiv. (a)(2) in accordance with 2013, No. 34 , § 30a.

Amendments--2017. Subsec. (a): Inserted "and the State Long-Term Care Ombudsman or a representative of the Office, as defined in section 7501 of this title" preceding "who knows".

Amendments--2013 (Adj. Sess.). Subdiv. (a)(5): Act 96 substituted "developmental disabilities;" for "mental retardation," following "adults with" and inserted "; or an" following "caregiving".

Amendments--2001 (Adj. Sess.) Section heading and subsec. (a): Amended generally.

Subsec. (b): Substituted "vulnerable adult” for "elderly and disabled adult” following "exploitation of a”.

Amendments--1993. Rewrote subsecs. (a) and (b) and deleted subsec. (d).

Amendments--1989. Inserted "as soon as possible, but in no event later than 72 hours thereafter" preceding "in accordance" in subsec. (a), added a new subsec. (c), and redesignated former subsec. (c) as subsec. (d).

Amendments--1985 (Adj. Sess.). Subsec. (a): Act No. 208 inserted "certified" following "physician's assistant licensed" and deleted "of this title" following "section 1153".

Act No. 151 substituted "residential" for "community" preceding "care home operator" and added "of this title" following "section 1153".

Amendments--1985. Section amended generally.

Prior law. 18 V.S.A. § 1152.

ANNOTATIONS

Cited. Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985).

§ 6904. Nature and content of report; to whom made.

A report shall be made orally or in writing to the Commissioner or designee as soon as possible, but in no event later than 48 hours thereafter. The report may also be made to a law enforcement officer. If an oral report is made by telephone or otherwise, the Commissioner or designee shall request that it be followed within one week by a report in writing. Reports shall contain the name and address of the reporter as well as the names and addresses of the vulnerable adult and persons responsible for his or her care, if known; the age of the vulnerable adult; the nature of his or her disability; the nature and extent of the vulnerable adult's abuse, neglect, or exploitation together with any evidence of previous abuse, neglect, or exploitation of the vulnerable adult; and any other information that the reporter believes might be helpful in establishing the cause of any injuries or reasons for the abuse, neglect, or exploitation as well as in protecting the vulnerable adult. If a report of abuse, neglect, or exploitation involves the acts or omissions of the Commissioner or employees of that Department, then such reports shall be directed to the Secretary of the Human Services who shall cause the report to be investigated by appropriate staff other than staff of the Department.

Added 1979, No. 150 (Adj. Sess.); amended 1985, No. 78 , § 4; 1989, No. 76 , § 2; 1993, No. 100 , § 3; 2001, No. 135 (Adj. Sess.), § 17, eff. June 13, 2002.

History

Amendments--2001 (Adj. Sess.). Substituted "the vulnerable adult" for "the elderly or disabled adult" throughout the section.

Amendments--1993. Substituted "48 hours" for "72 hours" in the first sentence and added the second sentence.

Amendments--1989. Substituted "possible, but in no event later than 72 hours thereafter" for "practicable" following "as soon as" in the first sentence.

Amendments--1985. Section amended generally.

Prior law. 18 V.S.A. § 1153.

§ 6905. Mandatory reporting to and postmortem investigation of deaths by the Office of the Chief Medical Examiner.

When a person making a report of suspected abuse, neglect, or exploitation of a vulnerable adult has reasonable cause to believe that a vulnerable adult died as a result of abuse or neglect, the Department shall notify the Office of the Chief Medical Examiner immediately.

Added 1985, No. 78 , § 5; amended 2001, No. 135 (Adj. Sess.), § 17, eff. June 13, 2002; 2015, No. 135 (Adj. Sess.), § 2.

History

Amendments--2015 (Adj. Sess.). Inserted "Office of the Chief" preceding "'Medical Examiner".

Amendments--2001 (Adj. Sess.). Substituted "a vulnerable adult" for "an elderly or disabled adult" in two places.

Prior law. 18 V.S.A. § 1153a.

§ 6906. Investigation.

    1. The Commissioner shall cause an investigation to commence within 48 hours after receipt of a report made pursuant to section 6904 of this title. (a) (1)  The Commissioner shall cause an investigation to commence within 48 hours after receipt of a report made pursuant to section 6904 of this title.
    2. The Commissioner shall keep the reporter and the alleged victim informed during all stages of the investigation, and shall:
      1. Notify the reporter, the victim, and the victim's legal representative, if any, in writing if Adult Protective Services or the Division of Licensing and Protection decides not to investigate the report. The notification shall be provided within five business days after the decision is made and shall inform the reporter that he or she may ask the Commissioner to review the decision.
      2. Notify the reporter, the victim, and the victim's legal representative, if any, in writing if Adult Protective Services or the Division of Licensing and Protection refers the report to another agency. The notification shall be provided within five business days after the referral is made.
      3. Notify the reporter, the victim, and the victim's legal representative, if any, in writing of the outcome of the investigation. The notification shall be provided within five business days after the decision is made and shall inform the reporter that he or she may ask the Commissioner to review the decision.
  1. The investigation shall include, except where inclusion would jeopardize the health, welfare, or safety of the vulnerable adult:
    1. a visit to the reported victim's place of residence or place of custody and to the location of the reported abuse, neglect, or exploitation;
    2. interviews with any available witnesses to the alleged abuse, neglect, or exploitation;
    3. an interview with the reporter of the alleged abuse, neglect, or exploitation;
    4. an interview with the reported victim, which interview may take place without the approval of the vulnerable adult's parents, guardian, or caregiver, but cannot take place over the objection of the reported victim; and
    5. an opportunity for the person who allegedly abused, neglected, or exploited to be interviewed.
  2. Upon completion of the investigation, a written report describing all evidence obtained and recommending a finding of substantiated or unsubstantiated shall be submitted to the Commissioner or designee for final resolution. If the recommendation is for a finding of substantiated the person shall be given notice of the recommendation, and the evidence that forms the basis of the recommendation, and shall be notified of how a substantiated report might be used. The person shall be offered an opportunity to dispute the recommendation and may, within 15 days of notification, request an administrative hearing in front of the Commissioner or designee. Following the hearing, or if no hearing is requested within 15 days of notification, the Commissioner or designee shall make a finding of substantiated or unsubstantiated, and notify the person of the decision and of the right to appeal.
  3. Within 30 days of notification that a report has been substantiated, a person against whom a complaint has been lodged may apply to the Human Services Board for relief on the grounds that it is unsubstantiated. The Board shall hold a fair hearing under 3 V.S.A. § 3091 . Unless the Commissioner agrees otherwise, the fair hearing shall be given priority by the Board and an expedited hearing shall be provided, with a decision issued promptly thereafter.
  4. If a report is found to be unsubstantiated, the records shall be retained as part of the confidential records of the Department of Disabilities, Aging, and Independent Living. If no court proceeding is brought pursuant to subdivision 6903(c)(3) of this title within six years of the date of the notice to the person against whom the complaint was lodged, the records relating to the unsubstantiated report shall be destroyed after notice to such person, unless he or she requests that the records not be destroyed.
  5. If an appeal is filed pursuant to subsection (d) of this section or to a court, the name of the individual shall not be added to the Registry until a substantiated finding of abuse, neglect, or exploitation becomes final.
  6. If the Human Services Board or a court reverses a substantiated finding, the Commissioner shall remove all information relating to that finding in accordance with subsection (e) of this section.
  7. When a final determination has been made, the Commissioner shall inform the vulnerable adult or his or her representative, the reporter, and, if the report is substantiated, the current employer of the individual, of the outcome of the investigation and any subsequent proceedings.

    Added 1979, No. 150 (Adj. Sess.); amended 1983, No. 203 (Adj. Sess.), § 2; 1985, No. 78 , § 6; 1993, No. 100 , § 4; 2001, No. 135 (Adj. Sess.), §§ 5, 17, eff. June 13, 2002; 2005, No. 79 , § 6; 2005, No. 174 (Adj. Sess.), § 131.

History

Revision note. Substituted "section 6904 of this title" for "section 1153 of this title" in subsec. (a) in view of the recodification of this chapter by 1989, No. 148 (Adj. Sess.), §§ 2(a), 3.

Amendments--2005 (Adj. Sess.). Subsec. (e): Inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities".

Amendments--2005 Subsec. (a): Designated the existing provisions of the subsection as subdiv. (1) and added subdiv. (2).

Amendments--2001 (Adj. Sess.). Subsec. (b): Substituted "vulnerable adult" for "elderly or disabled adult" following "or safety".

Subdiv. (b)(4): Substituted "vulnerable adult's" for "elderly or disabled adult's" preceding "parents".

Subsec. (d): Deleted "A person may" at the beginning, inserted "a person against whom a complaint has been lodged may" in the first sentence, and added the third sentence.

Subsec. (e): Amended generally.

Subsec. (f): Substituted "subsection (d) of this section" for "section 6906(d) of this title", and substituted "substantiated finding of abuse, neglect, or exploitation" for "finding of substantiated".

Subsec. (g): Substituted "substantiated finding" for "finding of substantiated".

Subsec. (h): Added.

Amendments--1993. Substituted "48 hours" for "72 hours" in subsec. (a), rewrote subsecs. (b) and (c), and added subsecs. (d) through (g).

Amendments--1985. Section amended generally.

Amendments--1983 (Adj. Sess.). Inserted "coordinated treatment" preceding "plan" and substituted "as developed by the appropriate multi-disciplinary team" for "treatment" thereafter in the second sentence.

Prior law. 18 V.S.A. § 1154.

Cross References

Cross references. Evidence of abuse, see 13 V.S.A. § 3255.

ANNOTATIONS

Analysis

1. Duties of prosecuting attorney .

In an action against an attorney serving as general counsel to the Commissioner of Aging and Disabilities, claiming that she knew or should have known that a report of substantiated abuse was incomplete, and that she violated ministerial duties by failing to investigate further, while this may have been imprudent and even neglectful, it did not violate a ministerial duty under subsection (c) of this section; the decision whether to investigate further was a discretionary one, and therefore protected from suit. Czechorowski v. State, 178 Vt. 524, 872 A.2d 883 (mem.) (March 22, 2005).

2. Duties of investigator .

Plaintiff's claim against the State for intentional infliction of emotional distress, premised on the allegation that an investigator for the Department of Aging and Disabilities acted outrageously by intentionally or recklessly disregarding her duty under subsection (c) of this section, was analogous to suits against private parties, and therefore could proceed. Czechorowski v. State, 178 Vt. 524, 872 A.2d 883 (mem.) (March 22, 2005).

§ 6907. Remedial action.

  1. Coordinated treatment plan.  If the investigation produces evidence that the vulnerable adult has been abused, neglected, or exploited, the Commissioner shall arrange for the provision of protective services in accordance with a written coordinated treatment plan.
  2. Consent to services.
    1. Protective services shall be provided only with the consent of the vulnerable adult, his or her guardian, or through appropriate court action. If the vulnerable adult does not consent, protective services shall not be provided, unless provision of protective services is court-ordered.
    2. In the event that the vulnerable adult's guardian is the person responsible for the abuse, neglect, or exploitation, and the guardian does not consent to the investigation or receipt of protective services, the Commissioner may petition for removal of the guardian.

      Added 1985, No. 78 , § 7; amended 2001, No. 135 (Adj. Sess.), § 6, eff. June 13, 2002.

History

Amendments--2001 (Adj. Sess.) Substituted "vulnerable" for "elderly or disabled" throughout the section; in subsec. (a) deleted "as developed by the appropriate multi-disciplinary team" at the end of the subsection; in subdiv. (b)(1) added "or through appropriate court action" at the end of the first sentence and "unless provision of protective services is court-ordered" at the end of the second sentence; and in subdiv. (b)(2) inserted "investigation or" preceding "receipt of protective services" and substituted "commissioner may" for "commissioner shall".

Prior law. 18 V.S.A. § 1154a.

§ 6908. Immunity from liability.

Any person who in good faith makes a report under section 6904 of this title alleging abuse, neglect, or exploitation shall be immune from any liability, civil or criminal, for making the report. Nothing in this section grants civil or criminal immunity to any person suspected of having abused, neglected, or exploited a vulnerable adult.

Added 1985, No. 78 , § 8; amended 2001, No. 135 (Adj. Sess.), § 17, eff. June 13, 2002.

History

Amendments--2001 (Adj. Sess.). Substituted "a vulnerable adult" for "an elderly or disabled adult" following "neglected or exploited".

Prior law. 18 V.S.A. § 1154b.

Cross References

Cross references. Confidentiality of identity of person reporting abuse, see § 6903 of this title.

§ 6909. Retaliatory action by employer prohibited.

No employer or supervisor may discharge; demote; transfer; reduce pay, benefits, or work privileges; prepare a negative work performance evaluation; or take any other action detrimental to any employee who files a good faith report in accordance with the provisions of this chapter, by reason of the report. Any person making a report under this chapter shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of his or her making a report.

Added 1985, No. 78 , § 9; amended 2013, No. 131 (Adj. Sess.), § 86, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Made minor stylistic changes.

Prior law. 18 V.S.A. § 1154c.

§ 6910. Interference by caregiver.

If consent to receive protective services has been obtained in accordance with section 6907 of this title and the Commissioner has reasonable cause to believe that the caregiver is interfering with the provision of those services, the Commissioner may petition the Superior Court for an order enjoining the caregiver from interfering with the provision of services. The petition shall present facts to show that the vulnerable adult is in need of protective services, that he or she or his or her guardian consents to the receipt of protective services, and that the caregiver has interfered with the provision of services. If the court, after hearing, finds that the vulnerable adult requires and consents to protective services, and has been prevented by his or her caregiver from receiving services, the court may issue an order enjoining the caregiver from further interference. The court may modify the terms of the coordinated treatment plan.

Added 1985, No. 78 , § 10; amended 1993, No. 100 , § 5; 2001, No. 135 (Adj. Sess.), § 17, eff. June 13, 2002.

History

2014 Deleted "District or" preceding "Superior Court" in the first sentence in accordance with 2009, No. 154 (Adj. Sess.), § 236.

Revision note - Substituted "section 6907 of this title" for "section 1154a" in the first sentence in view of the recodification of this chapter by 1989, No. 148 (Adj. Sess.), §§ 2(a), 3.

Amendments--2001 (Adj. Sess.). Substituted "the vulnerable adult" for "the elderly or disabled adult" preceding "is in need of" and "requires and consent", respectively.

Amendments--1993. Substituted "caregiver" for "caretaker" wherever it appeared.

Prior law. 18 V.S.A. 1154d.

§ 6911. Records of abuse, neglect, and exploitation.

    1. Information obtained through reports and investigations, including the identity of the reporter, shall remain confidential and shall not be released absent a court order, except as follows: (a) (1)  Information obtained through reports and investigations, including the identity of the reporter, shall remain confidential and shall not be released absent a court order, except as follows:
        1. The investigative report shall be disclosed only to: (A) (i) The investigative report shall be disclosed only to:

        the Commissioner or person designated to receive such records;

        persons assigned by the Commissioner to investigate reports;

        the person reported to have abused, neglected, or exploited a vulnerable adult;

        the vulnerable adult or his or her representative;

        the Office of Professional Regulation when deemed appropriate by the Commissioner;

        the Secretary of Education when deemed appropriate by the Commissioner;

        the Commissioner for Children and Families or designee for purposes of review of expungement petitions filed pursuant to section 4916c of this title;

        the Commissioner of Financial Regulation when deemed appropriate by the Commissioner for an investigation related to financial exploitation;

        (IX) a law enforcement agency; and

        the State's Attorney, or the Office of the Attorney General, when the Department believes there may be grounds for criminal prosecution or civil enforcement action, or in the course of a criminal or a civil investigation.

        When disclosing information pursuant to this subdivision, reasonable efforts shall be made to limit the information to the minimum necessary to accomplish the intended purpose of the disclosure, and no other information, including the identity of the reporter, shall be released absent a court order.

      1. Relevant information may be disclosed to the Secretary of Human Services, or the Secretary's designee, for the purpose of remediating or preventing abuse, neglect, or exploitation; to assist the Agency in its monitoring and oversight responsibilities; and in the course of a relief from abuse proceeding, guardianship proceeding, or any other court proceeding when the Commissioner deems it necessary to protect the victim, and the victim or his or her representative consents to the disclosure. When disclosing information pursuant to this subdivision, reasonable efforts shall be made to limit the information to the minimum necessary to accomplish the intended purpose of the disclosure, and no other information, including the identity of the reporter, shall be released absent a court order.
      2. Relevant information may be disclosed to a Family Division of the Superior Court, upon the request of that court, in any proceeding in which:
        1. a parent of a child challenges a presumption of parentage under 15C V.S.A. § 402(b)(3); or
        2. a parent of a child contests an allegation that he or she fostered or supported a bonded and dependent relationship between the child and a person seeking to be adjudicated a de facto parent under 15C V.S.A. § 501(a)(2).
    2. Notwithstanding subdivision (1)(A) of this subsection, financial information made available to an adult protective services investigator pursuant to section 6915 of this title may be used only in a judicial or administrative proceeding or investigation directly related to a report required or authorized under this chapter. Relevant information may be disclosed to the Secretary of Human Services pursuant to subdivision (1)(B) of this subsection, and may also be disclosed to the Commissioner of Financial Regulation when the investigation relates to financial exploitation of a vulnerable adult.
  1. The Commissioner shall maintain a registry that shall contain the following information: the names of all the individuals found on the basis of a substantiated report to have abused, neglected, or exploited a vulnerable adult; the date of the finding; and the nature of the finding. In addition, the Commissioner shall require that, aside from a person's name, at least one other personal identifier is listed in the Registry to prevent the possibility of misidentification.
  2. The Commissioner or designee may disclose Registry information only to:
    1. The State's Attorney or the Attorney General.
    2. The public as required by the Nursing Home Reform Act of 1986 and regulations promulgated under the Act.
    3. An employer if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, transportation, or supervision of children or vulnerable adults. "Employer," as used in this section, means a person or organization who employs or contracts with one or more individuals to care for or provide transportation services to children or vulnerable adults, on either a paid or volunteer basis. The employer may submit a request concerning a current employee, volunteer, grantee, or contractor or an individual to whom the employer has given a conditional offer of a contract, volunteer position, or employment. The request shall be accompanied by a release signed by the current or prospective employee, volunteer, grantee, or contractor. If that individual has a record of a substantiated report, the Commissioner shall provide the Registry information to the employer.
    4. A person or organization serving vulnerable adults by assisting with employer functions; offering, providing, or arranging for home sharing; or providing personal care services, developmental services, or mental health services for vulnerable adults. The person or organization may submit a request concerning an individual who has applied to provide such services or an individual who is already so engaged. The request shall be in writing and shall be accompanied by a release from the person applying for or already providing such services. If the person has a record of a substantiated report, the Commissioner shall provide the Registry information.
    5. The Commissioner for Children and Families or designee for purposes related to:
      1. the licensing or registration of facilities and individuals regulated by the Department for Children and Families; and
      2. the Department's child protection obligations under chapters 49-59 of this title.
    6. The Commissioner of Health or the Commissioner's designee for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the Department of Health, including persons to whom a conditional offer of employment has been made.
    7. Upon request or when relevant to other states' adult protective services offices.
    8. The Board of Medical Practice for the purpose of evaluating an applicant, licensee, or holder of certification pursuant to 26 V.S.A. § 1353 .
    9. The Secretary of Education or the Secretary's designee, for purposes related to the licensing of professional educators pursuant to 16 V.S.A. chapter 5, subchapter 4 and chapter 51.
    10. The Office of Professional Regulation for the purpose of evaluating an applicant, licensee, holder of a certification, or registrant for possible unprofessional conduct.
    11. A Family Division of the Superior Court upon request of that court if it is involved in any proceeding in which:
      1. a parent of a child challenges a presumption of parentage under 15C V.S.A. § 402(b)(3); or
      2. a parent of a child contests an allegation that he or she fostered or supported a bonded and dependent relationship between the child and a person seeking to be adjudicated a de facto parent under 15C V.S.A. § 501(a)(2).
  3. An employer providing transportation services to children or vulnerable adults may disclose Registry records obtained pursuant to subdivision (c)(3) of this section to the Agency of Human Services or its designee for the sole purpose of auditing the records to ensure compliance with this chapter. An employer shall provide such records at the request of the Agency or its designee. Only Registry records regarding individuals who provide direct transportation services or otherwise have direct contact with children or vulnerable adults may be disclosed.
  4. A person may, at any time, apply to the Human Services Board for relief if he or she has reasonable cause to believe that the contents of the Registry or investigative records are being misused.
  5. A person may at any time apply to the Department for expungement of his or her name from the Registry. The petitioner shall have the burden of showing why his or her name should be expunged from the Registry.
  6. Any person who violates this section shall be fined not more than $500.00.
  7. Volunteers shall be considered employees for purposes of this section.

    Added 1979, No. 150 (Adj. Sess.); amended 1985, No. 78 , § 11; 1989, No. 76 , § 3; 1993, No. 100 , § 6; 1995, No. 51 , § 1; 1995, No. 138 (Adj. Sess.), § 14, eff. May 1, 1996; 1995, No. 171 (Adj. Sess.), § 10, eff. May 15, 1996; 2001, No. 135 (Adj. Sess.), § 7, eff. June 13, 2002; 2003, No. 66 , § 136c; 2005, No. 174 (Adj. Sess.), § 132; 2007, No. 77 , § 2, eff. June 7, 2007; 2011, No. 61 , § 8, June 2, 2011; 2011, No. 141 (Adj. Sess.), § 3; 2013, No. 56 , §§ 7a, 7b; 2015, No. 38 , § 43, eff. May 28, 2015; 2015, No. 60 , § 13; 2015, No. 91 (Adj. Sess.), § 1, eff. May 10, 2016; 2017, No. 162 (Adj. Sess.), § 4; 2021, No. 20 , § 345.

History

Reference in text. The "Nursing Home Reform Act of 1986", referred to in subdiv. (c)(2) of this section, is Act No. 151 of the 1985 Adjourned Session. For provisions of the Act governing disclosure of information to the public, see 33 V.S.A. § 7112.

Revision note. Substituted "Nursing Home Reform Act of 1986" for "Nursing Home Reform Act of 1987" in subdiv. (c)(2) to correct an error in the reference.

Amendments--2021. Subdiv. (a)(1)(A): Inserted the subdiv. (i), (i)(I)-(i)(X), and (ii) designations; and inserted "and" at the end of subdiv. (i)(IX).

Subdiv. (c)(2): Substituted "promulgated under the Act" for "thereunder" following "regulations".

Amendments--2017 (Adj. Sess.). Subdiv. (a)(1)(C): Added.

Subdiv. (c)(11): Added.

Amendments--2015 (Adj. Sess.). Subsec. (a): Amended generally.

Amendments--2015. Section amended generally.

Amendments--2013 Subdiv. (a)(1): Added "the Secretary of Education when deemed appropriate by the Commissioner" preceding "; a law enforcement agency".

Subdiv. (c)(9): Added.

Amendments--2011 (Adj. Sess.). Inserted "or civil enforcement action" and "or a civil" in the first sentence in subdiv. (a)(1).

Amendments--2011. Subdiv. (c)(8): Added.

Amendments--2007. Subdiv. (c)(3): Added "transportation," following "treatment" in the first sentence, "or provide transportation services to" preceding "children" in the second sentence, and "grantee," following "volunteer" in the third and fourth sentences.

Subsec. (d): Added.

Subsecs. (e)-(h): Redesignated former subsecs. (d)-(g) as present subsecs. (e)-(h).

Amendments--2005 (Adj. Sess.). Subdiv. (c)(5): Substituted "the department for children and families" for "social and rehabilitation services" and "for children and families" for "of social and rehabilitation services".

Subdiv. (c)(6): Deleted "developmental and mental" preceding "health" and "services" following "health" in two places.

Amendments--2003. Subdiv. (c)(3): Substituted "if such information is used to determine whether to hire or retain a specific individual providing care, custody, treatment, or supervision of children or vulnerable adults. 'Employer'," for "which,” following "an employer" and inserted "children or" following "individuals to care for" and "to the employer” following "registry information”.

Amendments--2001 (Adj. Sess.) Section amended generally.

Amendments--1995 (Adj. Sess.) Subsec. (a): Act Nos. 138 and 171 inserted "the office of professional regulation when deemed appropriate by the commissioner" preceding "a law enforcement agency" in the second sentence.

Amendments--1995 Subdiv. (c)(3): Amended generally.

Amendments--1993. Section amended generally.

Amendments--1989. Subsec. (a): Substituted "unsubstantiated" for "unfounded" preceding "in which case the", deleted "unsubstantiated" thereafter, and added "after the report has been maintained in the registry for 12 months unless another report concerning the same parties or facility has been filed" following "destroyed".

Subsec. (c): Added the third sentence and substituted "substantiated" for "found" preceding "to have abused" in the seventh sentence.

Subsec. (d): Substituted "unsubstantiated" for "unfounded" preceding "or not otherwise" in the first sentence.

Amendments--1985. Subsec. (a): Deleted "of health" preceding "shall maintain" and "his" preceding "designee".

Subsec. (c): Amended generally.

Subsec. (d): Inserted "or her" following "him" in the first sentence.

Prior law. 18 V.S.A. § 1155.

ANNOTATIONS

Analysis

1. Legislative intent.

The purpose of 33 V.S.A. § 6902, the abuse statute, and the registry established by 33 V.S.A. § 6911 demonstrate that the Legislature did not intend permanently to identify and stigmatize a person who engages in abusive conduct, however minor or isolated, against an individual whose impairment is neither apparent nor known to the perpetrator. In re Tinker, 165 Vt. 621, 686 A.2d 946 (mem.) (1996).

2. Collateral estoppel.

Application of the doctrine of collateral estoppel was inappropriate with respect to the substantiation of a mother's abuse of her developmentally disabled daughter because the issues in a probate court proceeding involving her termination of guardianship over the daughter were separate and distinguishable, and the legal standards and burdens employed in each action were different. In re Harwood, 195 Vt. 7, 86 A.3d 976 (2013).

Cited. Czechorowski v. State, 178 Vt. 524, 872 A.2d 883 (mem.) (March 22, 2005).

§ 6912. Public education and disclosure of rights and duties; posting of notice.

  1. The Department, within available appropriations, shall conduct a publicity and education program to encourage the fullest degree of reporting of suspected abuse, neglect, or exploitation of vulnerable adults.
  2. All agencies, facilities, or institutions providing care and services to adults who are elders, have a disability, or are vulnerable shall inform their employees of their right and duty to report suspected incidents of abuse, neglect, or exploitation and the protections afforded them by this chapter, and shall establish appropriate policies and procedures to facilitate such reporting.
    1. All agencies, facilities, or institutions providing care and services to vulnerable adults shall post in a prominent and accessible location a poster describing the protections afforded to vulnerable adults by this chapter and by 13 V.S.A. chapter 28. The poster shall include, at a minimum, the following: (c) (1)  All agencies, facilities, or institutions providing care and services to vulnerable adults shall post in a prominent and accessible location a poster describing the protections afforded to vulnerable adults by this chapter and by 13 V.S.A. chapter 28. The poster shall include, at a minimum, the following:
      1. a statement that abuse, neglect, and exploitation of vulnerable adults is unlawful;
      2. a statement that it is unlawful to retaliate against a person for filing a complaint of abuse, neglect, or exploitation or for cooperating in an investigation of abuse, neglect, or exploitation;
      3. a description and examples of abuse, neglect, and exploitation;
      4. a statement of the range of consequences for persons who commit abuse, neglect, or exploitation;
      5. if the agency, facility, or institution has more than five employees, a description of the process for filing internal complaints about abuse, neglect, and exploitation, and the names, addresses, and telephone numbers of the person or persons to whom complaints should be made; and
      6. the complaint process of the appropriate State and federal agencies and directions as to how to contact such agencies.
    2. Except as provided in subdivision (3) of this subsection, the poster required by this subsection shall be posted in a location where it would ordinarily be viewed by vulnerable adults.
    3. An agency, facility, or institution that provides home-based services shall:
      1. display the poster required by this subsection in its principal place of business; and
      2. provide a written notice that includes all information contained on the poster to each vulnerable adult for whom services are provided.

        Added 1985, No. 78 , § 12; amended 2001, No. 135 (Adj. Sess.), § 17, eff. June 13, 2002; 2005, No. 79 , § 7; 2013, No. 96 (Adj. Sess.), § 217; 2021, No. 20 , § 346.

History

Amendments--2021. Subdivs. (c)(3) and (c)(3)(B): Substituted "that" for "which".

Amendments--2013 (Adj. Sess.). Subsec. (b): Substituted "adults who are elders, have a disability, or are vulnerable" for "elderly, disabled, or vulnerable adults" following "services to".

Amendments--2005 Added "posting of notice" in the section heading, deleted "or" preceding "disabled" and inserted "or vulnerable" thereafter in subsec. (b), and added subsec. (c).

Amendments--2001 (Adj. Sess.). Subsec. (a): Substituted "vulnerable adults" for "elderly and disabled adults".

Prior law. 18 V.S.A. § 1158.

§ 6913. Penalties; abuse; neglect; exploitation; mandatory reporter's failure to report.

  1. Whenever the Commissioner finds, after notice and hearing, that a person has committed sexual abuse as defined in subdivision 6902(1)(D) of this title, sexual exploitation as defined in subdivision 6902(6)(D), exploitation as defined in subdivision 6902(6)(A) or (B) in an amount in excess of $500.00, abuse that causes grievous injury to or the death of a vulnerable adult, or neglect that causes grievous injury to or the death of a vulnerable adult, the Commissioner may impose an administrative penalty of not more than $10,000.00 for each violation. The Commissioner shall notify the Office of Professional Regulation, or any other professional licensing board applicable to the violator, of any decision made pursuant to this subsection.
  2. Whenever the Commissioner finds, after notice and hearing, that a mandatory reporter, as defined in subdivisions 6903(a)(1), (2), (3), (4), and (5) of this title, has willfully violated the provisions of subsection 6903(a), the Commissioner may impose an administrative penalty not to exceed $500.00 per violation. For purposes of this subsection, every 24 hours that a report is not made beyond the period for reporting required by subsection 6903(a) shall constitute a new and separate violation, and a mandatory reporter shall be liable for an administrative penalty of not more than $500.00 for each 24-hour period, not to exceed a maximum penalty of $5,000.00 per reportable incident.
  3. A person who is aggrieved by a decision under subsection (a) or (b) of this section may appeal that decision to the Superior Court where either party may request trial by jury.

    Added 1985, No. 78 , § 13; amended 1993, No. 100 , § 8; 2001, No. 135 (Adj. Sess.), § 8, eff. June 13, 2002; 2005, No. 79 , § 4.

History

Amendments--2005 Section amended generally.

Amendments--2001 (Adj. Sess.) Subsec. (a): Substituted "subdivision" for "section” preceding "6902(1)(B) or (C)".

Subsec. (b): Substituted "subdivision 6902(6)(A)" for "section 6902(7)(A)".

Subsec. (c): Substituted "neglects a vulnerable adult as defined in subdivision 6902(7) of this title” for "fails to provide subsistence or medical or other care necessary for the well-being of an elderly or disabled adult” following "knowingly or recklessly”.

Subsec. (d): Substituted "abuse of a vulnerable” for "any sexual activity with an elderly or disabled” preceding "adult” and "in violation of subdivision 6902(1)(D) of this title” for "while providing a service for which he or she receives financial compensation” thereafter.

Subsec. (e): Substituted "subdivision 6903(a)(1), (2), (3), (4) and (5)" for "section 6903(a)(1) and (2)" and "subsection 6903(a)" for "section 6903(a)".

Subsecs. (g), (h), and (i): Added.

Amendments--1993. Added "criminal sexual activity by caregiver; abuse; neglect; exploitation" following "sentencing" in the section heading, rewrote subsecs. (a) and (b), added new subsecs. (c) through (e), and redesignated former subsec. (c) as subsec. (f).

Prior law. 18 V.S.A. § 1159.

§ 6914. Access to criminal records.

  1. The Commissioner may obtain from the Vermont Crime Information Center the record of convictions of any person to the extent that the Commissioner has determined by rule that such information is necessary to protect vulnerable adults.
  2. An employer may ask the Commissioner to obtain from the Vermont Crime Information Center the record of convictions of a person who is a current employee, volunteer, or contractor, or a person to whom the employer has given a conditional offer of a contract, volunteer position, or employment. The request shall be in writing and shall be accompanied by a release by the current or prospective contractor or employee. If the person has a record of convictions, the Commissioner shall inform the employer of the date and type of conviction.
  3. A person or organization serving vulnerable adults by assisting with employer functions, offering, providing, or arranging for home sharing, personal care services, developmental services, or mental health services for vulnerable adults, may submit a request to the Commissioner concerning an individual who has applied to provide such services or an individual who is already so engaged. The request shall be in writing, and shall be accompanied by a release from the individual applying for or already providing such services. If the individual has a record of convictions, the Commissioner shall inform the person or organization submitting the request of the date and type of conviction.
  4. The Commissioners of Disabilities, Aging, and Independent Living, of Health, and of Mental Health or their designees may, for purposes related to oversight and monitoring of persons who are served by or compensated with funds provided by the Departments of Disabilities, Aging, and Independent Living, of Health, and of Mental Health, ask the Vermont Crime Information Center for the record of convictions of a person who is a current employee, volunteer, or contractor, or a person to whom the employer has given a conditional offer of a contract, volunteer position, or employment. If the individual has a record of convictions, the Vermont Crime Information Center shall inform the appropriate Commissioner, or the Commissioner's designee, of the date and type of conviction.
  5. Information released to an employer under this section shall not be released or disclosed by the employer to any person. Any person who violates this subsection shall be fined not more than $500.00.
  6. Volunteers shall be considered employees for purposes of this section.
  7. [Repealed.]

    Added 1993, No. 100 , § 9; amended 1995, No. 51 , § 2; 1995, No. 174 (Adj. Sess.), § 3; 2001, No. 135 (Adj. Sess.), § 9, eff. June 13, 2002; 2005, No. 174 (Adj. Sess.), § 133; 2013, No. 131 (Adj. Sess.), § 87, eff. May 20, 2014.

History

2014. In subsecs. (b) and (d), substituted "Crime" for "Criminal." Although 2013, No. 131 (Adj. Sess.), § 87 changed "Crime" to "Criminal", 2013, No. 119 (Adj. Sess.) updated the name of the Vermont Crime Information Center throughout the V.S.A. so subsecs. (b) and (d) were also revised for consistency.

Amendments--2013 (Adj. Sess.). Subsec. (b): Substituted "Criminal Information Center" for "Crime Information Center" following "Vermont".

Subsec. (d): Substituted "The Commissioners of Disabilities, Aging, and Independent Living, of Health, and of Mental Health or their designees may" for "The Commissioner of Health or the Commissioner's designee" at the beginning, "Departments of Disabilities, Aging, and Independent Living, of Health, and of Mental Health" for "Department of Health may" following "funds provided by the", and "Criminal Information Center" for "Crime Information Center" twice, and inserted "appropriate" following "shall inform the".

Subsec. (g): Repealed.

Amendments--2005 (Adj. Sess.). Subsec. (d): Deleted "developmental and mental" preceding "health" and "services" following "health" in two places.

Subsec. (g): Inserted "disabilities" preceding "aging", substituted "independent living" for "disabilities", deleted "developmental and mental" preceding "health" and "services" following "health", and substituted "the commissioner's" for "their".

Amendments--2001 (Adj. Sess.) Section amended generally.

Amendments--1995 (Adj. Sess.) Subdiv. (d)(2): Substituted "commissioner of developmental and mental health services" for "commissioner of mental health and mental retardation" preceding "or their designees".

Amendments--1995 Subsec. (b): Amended generally.

Subsec. (c): Substituted "employer" for "owner or operator" in two places in the first sentence and "subsection" for "section" following "violates this" in the second sentence.

Subsec. (d): Added.

§ 6915. Access to financial information.

  1. As used in this chapter:
    1. "A person having custody or control of the financial information" means:
      1. a bank as defined in 8 V.S.A. § 11101 ;
      2. a credit union as defined in 8 V.S.A. § 30101 ;
      3. a broker-dealer or investment advisor, as those terms are defined in 9 V.S.A. § 5102 ; or
      4. a mutual fund as defined in 8 V.S.A. § 3461 .
    2. "Capacity" means an individual's ability to make and communicate a decision regarding the issue that needs to be decided.
    3. "Financial information" means an original or copy of, or information derived from:
      1. a document that grants signature authority over an account held at a financial institution;
      2. a statement, ledger card, or other record of an account held at a financial institution that shows transactions in or with respect to that account;
      3. a check, clear draft, or money order that is drawn on a financial institution or issued and payable by or through a financial institution;
      4. any item, other than an institutional or periodic charge, that is made under an agreement between a financial institution and another person's account held at a financial institution;
      5. any information that relates to a loan account or an application for a loan;
      6. information pertaining to an insurance or endowment policy, annuity contract, contributory or noncontributory pension fund, mutual fund, or security, as defined in 9 V.S.A. § 5102 ; or
      7. evidence of a transaction conducted by electronic or telephonic means.
    4. "Financial institution" means any financial services provider licensed, registered, or otherwise authorized to do business in Vermont, including a bank, credit union, broker-dealer, investment advisor, mutual fund, or investment company.
  2. A person having custody or control of the financial information of a vulnerable adult shall make the information or a copy of the information available to an adult protective services investigator upon receipt of a court order or receipt of the investigator's written request.
    1. The request shall include a statement signed by the account holder, if he or she has capacity, or the account holder's guardian with financial powers or agent under a power of attorney consenting to the release of the information to the investigator.
    2. If the vulnerable adult lacks capacity and does not have a guardian or agent, or if the vulnerable adult lacks capacity and his or her guardian or agent is the alleged perpetrator, the request shall include a statement signed by the investigator asserting that all of the following conditions exist:
      1. The account holder is an alleged victim of abuse, neglect, or financial exploitation.
      2. The alleged victim lacks the capacity to consent to the release of the financial information.
      3. Law enforcement is not involved in the investigation or has not requested a subpoena for the information.
      4. The alleged victim will suffer imminent harm if the investigation is delayed while the investigator obtains a court order authorizing the release of the information.
      5. Immediate enforcement activity that depends on the information would be materially and adversely affected by waiting until the alleged victim regains capacity.
      6. The Commissioner of Disabilities, Aging, and Independent Living has personally reviewed the request and confirmed that the conditions set forth in subdivisions (A) through (E) of this subdivision (2) have been met and that disclosure of the information is necessary to protect the alleged victim from abuse, neglect, or financial exploitation.
  3. If a guardian refuses to consent to the release of the alleged victim's financial information, the investigator may seek review of the guardian's refusal by filing a motion with the Probate Division of the Superior Court pursuant to 14 V.S.A. § 3062(c) .
  4. If an agent under a power of attorney refuses to consent to the release of the alleged victim's financial information, the investigator may file a petition in Superior Court pursuant to 14 V.S.A. § 3510(b) to compel the agent to consent to the release of the alleged victim's financial information.
  5. The investigator shall include a copy of the written request in the alleged victim's case file.
  6. The person having custody or control of the financial information shall not require the investigator to provide details of the investigation to support the request for production of the information.
  7. The information requested and released shall be used only to investigate the allegation of abuse, neglect, or financial exploitation or for the purposes set forth in subdivision 6911(a)(1)(B) of this title and shall not be used against the alleged victim.
  8. The person having custody or control of the financial information shall provide the information to the investigator as soon as possible but, absent extraordinary circumstances, no later than 10 business days following receipt of the investigator's written request or receipt of a court order or subpoena requiring disclosure of the information.
  9. A person who in good faith makes an alleged victim's financial information or a copy of the information available to an investigator in accordance with this section shall be immune from civil or criminal liability for disclosure of the information unless the person's actions constitute gross negligence, recklessness, or intentional misconduct. Nothing in this section shall be construed to provide civil or criminal immunity to a person suspected of having abused, neglected, or exploited a vulnerable adult.
  10. The person having custody or control of the financial information of an alleged victim may charge the Department of Disabilities, Aging, and Independent Living no more than the actual cost of providing the information to the investigator and shall not refuse to provide the information until payment is received. A financial institution shall not charge the Department for the information if the financial institution would not charge if the request for the information had been made directly by the account holder.

    Added 2015, No. 91 (Adj. Sess.), § 2, eff. May 10, 2016.

§ 6916. Annual report.

On or before January 15 of each year, and notwithstanding the provisions of 2 V.S.A. § 20(d) , the Department shall report to the House Committee on Human Services and the Senate Committee on Health and Welfare regarding the Department's adult protective services activities during the previous fiscal year, including:

  1. the number of reports of abuse, neglect, or exploitation of a vulnerable adult that the Department's Adult Protective Services program received during the previous fiscal year and comparisons with the two prior fiscal years;
  2. the Adult Protective Services program's timeliness in responding to reports of abuse, neglect, or exploitation of a vulnerable adult during the previous fiscal year, including the median number of days it took the program to make a screening decision;
  3. the number of reports received during the previous fiscal year that required a field screen to determine vulnerability and the percentage of field screens that were completed within 10 calendar days;
  4. the number of reports of abuse, neglect, or exploitation of a vulnerable adult that were received from a facility licensed by the Department's Division of Licensing and Protection during the previous fiscal year;
  5. the numbers and percentages of reports received during the previous fiscal year by each reporting method, including by telephone, e-mail, Internet, facsimile, and other means;
  6. the number of investigations opened during the previous fiscal year and comparisons with the two prior fiscal years;
  7. the number and percentage of investigations during the previous fiscal year in which the alleged victim was a resident of a facility licensed by the Department's Division of Licensing and Protection;
  8. data regarding the types of maltreatment experienced by alleged victims during the previous fiscal year, including:
    1. the percentage of investigations that involved multiple types of allegations of abuse, neglect, or exploitation, or a combination;
    2. the numbers and percentages of unsubstantiated investigations by type of maltreatment; and
    3. the numbers and percentages of recommended substantiations by type of maltreatment;
  9. the Department's timeliness in completing investigations during the previous fiscal year, including both unsubstantiated and recommended substantiated investigations;
  10. data on Adult Protective Services program investigator caseloads, including:
    1. average daily caseloads during the previous fiscal year and comparisons with the two prior fiscal years;
    2. average daily open investigations statewide during the previous fiscal year and comparisons with the two prior fiscal years;
    3. average numbers of completed investigations per investigator during the previous fiscal year; and
    4. average numbers of completed investigations per week during the previous fiscal year;
  11. the number of reviews of screening decisions not to investigate, including the number and percentage of these decisions that were upheld during the previous fiscal year and comparisons with the two prior fiscal years;
  12. the number of reviews of investigations that resulted in an unsubstantiation, including the number and percentage of these unsubstantiations that were upheld during the previous fiscal year and comparisons with the two prior fiscal years;
  13. the number of appeals of recommendations of substantiation that concluded with the Commissioner, including the number and percentage of these recommendations that the Commissioner upheld during the previous fiscal year and comparisons with the two prior fiscal years;
  14. the number of appeals of recommendations of substantiation that concluded with the Human Services Board, including the numbers and percentages of these recommendations that the Board upheld during the previous fiscal year and comparisons with the two prior fiscal years;
  15. the number of appeals of recommendations of substantiation that concluded with the Vermont Supreme Court, including the numbers and percentages of these recommendations that the Court upheld during the previous fiscal year and comparisons with the two prior fiscal years;
  16. the number of expungement requests received during the previous fiscal year, including the number of requests that resulted in removal of an individual from the Adult Abuse Registry;
  17. the number of individuals placed on the Adult Abuse Registry during the previous fiscal year and comparisons with the two prior fiscal years; and
  18. the number of individuals removed from the Adult Abuse Registry during the previous fiscal year.

    Added 2019, No. 156 (Adj. Sess.), § 2, eff. Oct. 5, 2020.

Subchapter 2. Abuse Prevention for Vulnerable Adults

History

Amendments--2001 (Adj. Sess.). Act No. 135 (Adj. Sess.), § 17, substituted "Vulnerable Adults" for "Elderly and Disabled Adults" in the subchapter heading.

§ 6931. Definitions.

In addition to the definitions in section 6902 of this title, as used in this subchapter, "interested person" means a representative of the vulnerable adult; the Commissioner of Disabilities, Aging, and Independent Living; or the Commissioner's designee.

Added 1991, No. 180 (Adj. Sess.), § 2; amended 2001, No. 135 (Adj. Sess.), § 10, eff. June 13, 2002; 2005, No. 174 (Adj. Sess.), § 134; 2021, No. 20 , § 347.

History

Amendments--2021. Substituted "as used in" for "for the purposes of" preceding "this subchapter".

Amendments--2005 (Adj. Sess.). Inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities".

Amendments--2001 (Adj. Sess.) Substituted "representative" for "guardian" and "vulnerable" for "elderly or disabled".

Cross References

Cross references. Abuse prevention proceedings, see V.R.F.P. 9.

§ 6932. Jurisdiction and venue.

  1. The Family Division of the Superior Court shall have jurisdiction over proceedings under this subchapter.
  2. Emergency orders under section 6936 of this title may be issued by a judge of the Criminal, Civil, or Family Division of the Superior Court.
  3. Proceedings under this subchapter may be commenced in the county in which the plaintiff resides. If the vulnerable adult has left the residence to avoid abuse or exploitation, the plaintiff shall have the option to bring an action in the county of the previous residence or the county of the new residence.

    Added 1991, No. 180 (Adj. Sess.), § 2; amended 2001, No. 135 (Adj. Sess.), § 17, eff. June 13, 2002; 2009, No. 154 (Adj. Sess.), § 233.

History

Amendments--2009 (Adj. Sess.) Subsec. (a): Inserted "division of the superior" preceding "court".

Subsec. (b): Substituted "the criminal, civil, or family division of the superior court" for "the district, superior or family court".

Amendments--2001 (Adj. Sess.). Substituted "vulnerable adult" for "elderly or disabled adult" preceding "has left the residence".

§ 6933. Request for relief.

  1. A vulnerable adult or an interested person on behalf of a vulnerable adult may seek relief from abuse, neglect, or exploitation by filing a petition requesting one or both of the following orders:
    1. that the defendant refrain from abusing, neglecting, or exploiting the vulnerable adult;
    2. that the defendant immediately vacate the household.
  2. No filing fee shall be required.

    Added 1991, No. 180 (Adj. Sess.), § 2; amended 2001, No. 135 (Adj. Sess.), § 11, eff. June 13, 2002.

History

Amendments--2001 (Adj. Sess.) Substituted "vulnerable adult" for "elderly or disabled adult" throughout the section, in subsec. (a) inserted "neglect" following "abuse", and in subdiv. (a)(1) inserted "neglecting" following "abusing".

§ 6934. Notice.

Except as provided in section 6936 of this title, the court shall grant relief only after notice to the defendant and a hearing. If the petition is made by an interested person, notice shall be provided to the vulnerable adult and the court shall determine whether the vulnerable adult is capable of expressing his or her wishes with respect to the petition and if so, whether the vulnerable adult wishes to pursue the petition. If the court determines that the vulnerable adult is capable of expressing his or her opinion and does not wish to pursue the petition, the court shall dismiss the petition.

Added 1991, No. 180 (Adj. Sess.), § 2; amended 2001, No. 135 (Adj. Sess.), § 17, eff. June 13, 2002.

History

Amendments--2001 (Adj. Sess.). Substituted "vulnerable adult" for "elderly or disabled adult" throughout the section.

§ 6935. Findings and order.

  1. If the court finds that the defendant has abused, neglected, or exploited the vulnerable adult, the court shall make such order as it deems necessary to protect the vulnerable adult. The plaintiff shall have the burden of proving abuse, neglect, or exploitation by a preponderance of the evidence. Relief shall be granted for a fixed period of time, at the expiration of which the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the vulnerable adult from abuse, neglect, or exploitation. The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstances. If the motion for extension or modification of the order is made by an interested person, notice shall be provided to the vulnerable adult, and the court shall determine whether the vulnerable adult is capable of expressing his or her wishes with respect to the motion and, if so, whether the vulnerable adult wishes to request an extension or modification. If the court determines the vulnerable adult is capable of expressing his or her wishes and does not wish to pursue the motion, the court shall dismiss the motion.
  2. Every order under this subchapter shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order, and shall be signed by the judge.
  3. Form complaints and form orders shall be provided by the Court Administrator and shall be maintained by the clerks of the courts.
  4. Every order issued under this subchapter shall bear the following language: "VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH."

    Added 1991, No. 180 (Adj. Sess.), § 2; amended 2001, No. 135 (Adj. Sess.), § 12, eff. June 13, 2002.

History

Amendments--2001 (Adj. Sess.) Subsec. (a): Inserted ", neglected" and ", neglect" following "abused" and "abuse", respectively, substituted "vulnerable" for "elderly or disabled" throughout, and added the last two sentences.

ANNOTATIONS

Analysis

1. Age of adult.

Court is required to issue orders it deems necessary to protect vulnerable adults who have been abused. The statute does not require that the abuse of the vulnerable adult occurred after the adult reached the age of majority. Smith v. Wright, 194 Vt. 326, 79 A.3d 876 (2013).

2. Evidence.

There was sufficient evidence to support a relief-from-abuse order in a vulnerable-adult case. Plaintiff testified that on more than five occasions defendant had sexual contact with her, and although defendant denied this, other evidence supported plaintiff's testimony; defendant admitted to being alone with plaintiff at times that coincided with her recollection of sexual contact, and he reacted very passionately in situations concerning plaintiff. Smith v. Wright, 194 Vt. 326, 79 A.3d 876 (2013).

§ 6936. Emergency relief; hearings.

  1. In accordance with the Rules for Family Proceedings, temporary orders under this subchapter may be issued ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has abused, neglected, or exploited the vulnerable adult and that serious and irreparable harm to the physical health or financial interests of the vulnerable adult will result without ex parte relief.
  2. If the petition is made by an interested person, notice shall be provided to the vulnerable adult and the court shall determine whether the vulnerable adult is capable of expressing his or her wishes with respect to the petition and if so, whether the vulnerable adult wishes to pursue the petition. If the court determines that the vulnerable adult is capable of expressing his or her opinion and does not wish to pursue the petition, the court shall dismiss the petition.
  3. In addition to the information required under subsection 6935(b) of this title, every order issued under this section shall state upon its face a date, time, and place when the defendant may appear to petition the court for modification or discharge of the order. When service of the temporary order cannot be made before the scheduled hearing, the court shall continue the hearing and extend the terms of any temporary order upon request of the plaintiff for such additional time as it deems necessary to achieve service on the defendant. The defendant's opportunity to contest shall be scheduled as soon as reasonably possible, but in no event later than 10 days from the date of issuance of the order.

    Added 1991, No. 180 (Adj. Sess.), § 2; amended 2001, No. 135 (Adj. Sess.), § 13, eff. June 13, 2002.

History

Amendments--2001 (Adj. Sess.) Subsec. (a): Substituted "Rules for Family Proceedings" for "Family Court Rules", added ", neglected" following "abused", and substituted "vulnerable adult" for "elderly or disabled adult" in two places.

§ 6937. Service.

  1. A petition or ex parte temporary order or final order issued under this subchapter shall be served by any sheriff or constable or any municipal or State Police officer in accordance with the Vermont Rules of Civil Procedure. A court that issues an order under this chapter during court hours shall promptly transmit the order electronically or by other means to a law enforcement agency for service.
  2. A defendant who attends a hearing held under section 6935 of this title at which a temporary or final order under this chapter is issued and who receives notice from the court on the record that the order has been issued shall be deemed to have been served. A defendant notified by the court on the record shall be required to adhere immediately to the provisions of the order. However, even when the court has previously notified the defendant of the order, the court shall transmit the order for additional service by a law enforcement agency.
  3. The person making service shall file a return of service with the court stating the date, time, and place at which the order was delivered personally to the defendant.

    Added 1991, No. 180 (Adj. Sess.), § 2; amended 2013, No. 17 , § 5; 2013, No. 17 , § 6, eff. Nov. 1, 2013.

History

Amendments--2013. Act No. 17, § 5, eff. July 1, 2013, designated the existing first sentence as subsec. (a) and the existing second sentence as subsec. (c) and added subsec. (b).

Act No. 17, § 6, eff. Nov. 1, 2013, added the second sentence to subsec. (a) and the third sentence to subsec. (b).

§ 6938. Procedure.

  1. Except as otherwise provided in this subchapter, proceedings commenced under this subchapter shall be in accordance with the Rules for Family Proceedings and shall be in addition to any other available civil or criminal remedies.
  2. If the petition is filed by an interested person, the court may in its discretion appoint a guardian ad litem for the vulnerable adult.
  3. The Court Administrator shall establish procedures to ensure access to relief after regular court hours, or on weekends and holidays. The Court Administrator is authorized to contract with public or private agencies to assist persons to seek relief and to gain access to Superior Court judges. Law enforcement agencies shall assist in carrying out the intent of this section.

    Added 1991, No. 180 (Adj. Sess.), § 2; amended 2001, No. 135 (Adj. Sess.), § 17, eff. June 13, 2002; 2009, No. 154 (Adj. Sess.), § 234.

History

Amendments--2009 (Adj. Sess.) Subsec. (a): Inserted "Rules for" preceding "Family" and substituted "Proceedings" for "Court Rules" thereafter.

Subsec. (c): Deleted "district," preceding "superior" and "and family" thereafter in the second sentence.

Amendments--2001 (Adj. Sess.) Substituted "a vulnerable adult" for "an elderly or disabled adult" in two places.

§ 6939. Filing orders with law enforcement personnel; Department of Public Safety Protection Order Database.

  1. Police departments, sheriff's departments, and State Police district offices shall establish procedures for filing orders issued under this subchapter and for making personnel aware of the existence and contents of such orders.
  2. Any court in this State that issues an order under this subchapter shall transmit a copy of the order to the Department of Public Safety Protective Order Database.

    Added 1991, No. 180 (Adj. Sess.), § 2; amended 2005, No. 193 (Adj. Sess.), § 8, eff. Oct. 1, 2006.

History

Amendments--2005 (Adj. Sess.). Section heading: Inserted "; department of public safety protection order database" following "personnel".

Subsec. (a): Added the subsection designation.

Subsec. (b): Added.

§ 6940. Enforcement.

  1. Law enforcement officers are authorized to enforce orders issued under this subchapter.
  2. Violation of an order issued under this subchapter may be prosecuted as criminal contempt under Rule 42 of the Vermont Rules of Criminal Procedure. The prosecution for criminal contempt may be initiated by the State's Attorney in the Family Division of the Superior Court in the county that issued the order. The maximum penalty that may be imposed under this subsection shall be a fine of $1,000.00 or imprisonment for six months, or both. A sentence of imprisonment upon conviction for criminal contempt may be stayed in the discretion of the court pending the expiration of the time allowed for filing notice of appeal or pending appeal if any appeal is taken.

    Added 1991, No. 180 (Adj. Sess.), § 2; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments--2009 (Adj. Sess.) Subsec. (b): Substituted "family division of the superior court" for "family court" in the second sentence.

Cross References

Cross references. Violations of abuse prevention orders generally, see 13 V.S.A. § 1030.

§ 6941. Appeals.

An order of the court issued under section 6935 of this title shall be treated as a final order for the purposes of appeal. Appeal may be taken by either party to the Supreme Court under the Vermont Rules of Appellate Procedure and the appeal shall be determined forthwith.

Added 1991, No. 180 (Adj. Sess.), § 2.

Subchapter 3. Protecting Against Financial Exploitation

§ 6951. Definitions.

As used in this subchapter:

  1. "Agent" shall have the same meaning as in 14 V.S.A. § 3501 .
  2. "Guardian" means a person appointed to serve as the guardian for a vulnerable adult pursuant to the process established in 14 V.S.A. chapter 111 or in 18 V.S.A. chapter 215.
  3. "Financial exploitation" means:
    1. using, withholding, transferring, or disposing of funds or property of a vulnerable adult, without or in excess of legal authority, for the wrongful profit or advantage of another;
    2. acquiring possession or control of or an interest in funds or property of a vulnerable adult through the use of undue influence, harassment, duress, or fraud; or
    3. the act of forcing or compelling a vulnerable adult against his or her will to perform services for the profit or financial advantage of another.
  4. "Vulnerable adult" has the same meaning as in section 6902 of this chapter.

    Added 2017, No. 23 , § 4, eff. May 4, 2017; amended 2021, No. 20 , § 348.

History

Amendments--2021. Subdiv. (4): Substituted "has" for "shall have" preceding "the same”.

§ 6952. Civil action for relief from financial exploitation.

  1. Right of action.  A vulnerable adult or his or her agent or guardian may bring an action in the Civil Division of the Superior Court pursuant to this section for relief against a natural person who, with reckless disregard or with knowledge, has engaged in the financial exploitation of the vulnerable adult. An action under this section shall be dismissed if the court determines the vulnerable adult is capable of expressing his or her wishes and that he or she does not wish to pursue the action.

    Remedies.

    If the court finds that financial exploitation of a vulnerable adult has occurred, the court shall grant appropriate relief to the vulnerable adult, which may include money damages, injunctive relief, reasonable costs, attorney's fees, and equitable relief.

    (2) If the financial exploitation was intentional, the court may grant exemplary damages not to exceed three times the value of economic damages.

    (c) Effects on other parties. No relief granted or otherwise obtained pursuant to this section shall affect or limit in any way the right, title, or interest of a good faith purchaser, mortgagee, holder of a security interest, or other party who obtained an interest in property after its transfer from the vulnerable adult to the natural person who engaged in financial exploitation. No relief granted or otherwise obtained pursuant to this section shall affect any mortgage deed to the extent of the value provided by the mortgagee.

    (d) Statute of limitations. The limitations period imposed by 12 V.S.A. § 511 shall apply to all actions brought pursuant to this subchapter.

    Added 2017, No. 23 , § 4, eff. May 4, 2017; amended 2021, No. 20 , § 349.

History

Amendments--2021. Subsec. (b): Moved subdiv. (1) designation to the next line.

§ 6953. Other relief still available.

Nothing in this subchapter shall be construed to limit the availability of other causes of action or relief at law or equity to which a vulnerable adult may be entitled under other State or federal laws or at common law.

Added 2017, No. 23 , § 4, eff. May 4, 2017.

Subchapter 4. Vermont Vulnerable Adult Fatality Review Team

History

Amendments--2017. 2017, No. 23 , § 3, effective May 4, 2017, redesignated the provisions of subchapter 3, comprising sections 6961-6964, as subchapter 4.

§ 6961. Vermont Vulnerable Adult Fatality Review Team established.

  1. Creation.  There is created a Vermont Vulnerable Adult Fatality Review Team (Team) within the Office of the Attorney General for the following purposes:
    1. to examine select cases of abuse- and neglect-related fatalities and preventable deaths of vulnerable adults in Vermont;
    2. to identify system gaps and risk factors associated with those deaths;
    3. to educate the public, service providers, and policymakers about abuse- and neglect-related fatalities and preventable deaths of vulnerable adults and strategies for intervention; and
    4. to recommend legislation, rules, policies, procedures, practices, training, and coordination of services to promote interagency collaboration and prevent future abuse- and neglect-related fatalities.

      Membership.

      The Team shall comprise the following members:

      1. the Attorney General or designee;
      2. the Commissioner of Disabilities, Aging, and Independent Living or designee;
      3. the Commissioner of Public Safety or designee;
      4. the Chief Medical Examiner or designee;
      5. the Assistant Director for Adult Protective Services in the Department of Disabilities, Aging, and Independent Living or designee;
      6. the Adult Services Division Director in the Department of Disabilities, Aging, and Independent Living or designee;
      7. the Director of the Vermont Office of Emergency Medical Services and Injury Prevention or designee;
      8. the State Long-Term Care Ombudsman;
      9. a representative of victim services, appointed by the Executive Director of the Vermont Center for Crime Victim Services;
      10. the Director of the Center on Aging at the University of Vermont, or a gerontologist or geriatrician appointed by the Director;
      11. the Director of Disability Rights Vermont or designee;
      12. a hospital representative, appointed by the Vermont Association of Hospitals and Health Systems;
      13. a long-term care facility representative, appointed by the Vermont Health Care Association; and
      14. a home health agency representative, appointed jointly by the Vermont Association of Home Health Agencies and designated home health agencies that are not members of the Vermont Association of Home Health Agencies.

        (2) The members of the Team specified in subdivision (1) of this subsection shall serve two-year terms. Any vacancy on the Team shall be filled in the same manner as the original appointment. The replacement member shall serve for the remainder of the unexpired term.

        (c) Meetings.

        (1) The Attorney General or designee shall call the first meeting of the Team to occur on or before September 30, 2016.

        (2) The Team shall select a chair and vice chair from among its members at the first meeting and annually thereafter. The Vice Chair shall also serve as Secretary.

        (3) The Team shall meet at such times as may reasonably be necessary to carry out its duties, but at least once in each calendar quarter.

        Added 2015, No. 135 (Adj. Sess.), § 1; amended 2021, No. 20 , § 350.

History

Amendments--2021. Subsec. (b): Moved subdiv. (1) designation to the next line.

§ 6962. Powers and duties; reports.

  1. The Team shall develop and implement policies to ensure that it uses uniform procedures to review the deaths of vulnerable adults in Vermont.
    1. The Team may review the death of any person who meets the definition of a vulnerable adult in subdivision 6902(14) of this title and: (b) (1)  The Team may review the death of any person who meets the definition of a vulnerable adult in subdivision 6902(14) of this title and:
      1. who was the subject of an adult protective services investigation; or
      2. whose death came under the jurisdiction of, or was investigated by, the Office of the Chief Medical Examiner.
    2. The Team shall not initiate the review of the death of a vulnerable adult until the conclusion of any active adult protective services or law enforcement investigation, criminal prosecution, or civil action.
    3. The review shall not impose unreasonable burdens on health care providers for production of information, records, or other materials. The Team shall first seek to obtain information, records, and other materials from State agencies or that were generated in the course of an investigation by the Adult Protective Services Division, the Office of the Chief Medical Examiner, or law enforcement.
    4. The Team shall establish criteria for selecting specific fatalities for review to ensure the analysis of fatalities occurring in both institutional and home- and community-based settings.
    1. Beginning in 2018, the Team shall submit an annual report to the General Assembly on or before January 15. (c) (1)  Beginning in 2018, the Team shall submit an annual report to the General Assembly on or before January 15.
    2. The annual report shall:
      1. summarize the Team's activities for the preceding year;
      2. identify any changes to the Team's uniform procedures;
      3. identify system gaps and risk factors associated with deaths reviewed by the Team;
      4. recommend changes in statute, rule, policy, procedure, practice, training, or coordination of services that would decrease the number of preventable deaths in Vermont's vulnerable adult population; and
      5. assess the effectiveness of the Team's activities.

        Added 2015, No. 135 (Adj. Sess.), § 1.

§ 6963. Confidentiality.

  1. The Team's proceedings and records are confidential and exempt from public inspection and copying under the Public Records Act and shall not be released. Such information shall not be subject to subpoena or discovery or be admissible in any civil or criminal proceedings; provided, however, that nothing in this subsection shall be construed to limit or restrict the right to discover or use in any civil or criminal proceedings anything that is available from another source and entirely independent of the Team's review. The Team shall not use information, records, or data that it obtains or generates for purposes other than those described in this subchapter.
  2. The Team's conclusions and recommendations may be disclosed, but shall not identify or allow for the identification of any person or entity.
  3. Meetings of the Team are confidential and shall be exempt from the Vermont Open Meeting Law. The Secretary of the Team shall maintain any records, including meeting minutes, generated by the Team.
  4. Team members and persons invited to assist the Team shall not reveal information, records, discussions, and opinions disclosed in connection with the Team's work, and shall execute a sworn statement to honor the confidentiality of such information, records, discussions, and opinions. The Chair of the Team shall be responsible for obtaining and maintaining confidentiality agreements.

    Added 2015, No. 135 (Adj. Sess.), § 1.

§ 6964. Access to information and records.

  1. In any case subject to review by the Team, and upon written request by the Chair of the Team, any person who possesses information or records that are necessary and relevant to Team review shall as soon as practicable provide the Team with the information and records.
  2. The Team shall not have access to the proceedings, reports, and records of peer review committees as defined in 26 V.S.A. § 1441 .
  3. Persons disclosing or providing information or records upon the Team's request are not criminally or civilly liable for disclosing or providing information or records in compliance with this section.

    Added 2015, No. 135 (Adj. Sess.), § 1.

CHAPTER 71. REGULATION OF LONG-TERM CARE FACILITIES

History

Amendments--2009. Rewrote the chapter heading and added subchapters.

Citation of chapter. 1953, No. 114 , § 2, amended by 1957, No. 198 , § 2, provided: "This act [chapter] may be cited as the 'Nursing Home and Home for the Aged Licensing Law'."

Cross References

Cross references. Restrictions on smoking in public places, see 18 V.S.A. chapter 37.

Licensing of nursing home administrators, see 18 V.S.A. chapter 46.

Health facility planning, see 18 V.S.A. chapter 221, subchapter 5.

Nursing Home Residents' Bill of Rights, see chapter 73 of this title.

Subchapter 1. General Provisions

§ 7101. Policy.

The purpose of this chapter is to provide for the development, establishment, and enforcement of standards for the construction, maintenance, operation, provision of receivership, and dissolution of long-term care facilities in which medical, nursing, or other care is rendered, which will promote safe surroundings, adequate care, and humane treatment; safeguard the health of, safety of, and continuity of care to residents; and protect residents from the adverse health effects caused by abrupt or unsuitable transfer of such persons cared for in these facilities.

Amended 2009, No. 36 , § 1.

History

Source. 1957, No. 198 , § 1. 1953, No. 114 , § 1.

Amendments--2009. Section amended generally.

Prospective amendment of section. 2009, No. 36 , § 4(b) provides: "Upon expiration of Sec. 2 of this act, 33 V.S.A. § 7101 shall be amended by striking the term ', provision of receivership and dissolution'." 2009, No. 36 , § 4(a) provides: "Sec. 2 of this act (33 V.S.A. chapter 73, subchapter 3) shall expire on June 30, 2011."

Repeal of prospective amendment of section. 2009, No. 36 , § 4(b), which provided for the amendment of this section by striking the term ", provision of receivership and dissolution", was repealed by 2011, No. 12 , § 1, effective April 28, 2011.

Prior law. 18 V.S.A. § 2001.

Cross References

Cross references. Tax on transferors of nursing homes, see 32 V.S.A. chapter 230.

§ 7102. Definitions.

As used in this chapter:

  1. "Assisted living residence" means a program that combines housing, health, and supportive services for the support of resident independence and aging in place. Within a homelike setting, assisted living units offer, at a minimum, a private bedroom, private bath, living space, kitchen capacity, and a lockable door. Assisted living promotes resident self-direction and active participation in decision making while emphasizing individuality, privacy, and dignity.
  2. "Facility" means a residential care home, nursing home, assisted living residence, home for persons who are terminally ill, or therapeutic community residence licensed or required to be licensed pursuant to the provisions of this chapter.
  3. "Home for persons who are terminally ill" means a place providing services specifically for three or more people who are dying, including room, board, personal care, and other assistance for the residents' emotional, spiritual, and physical well-being.
  4. "Licensee" means any person, other than a receiver appointed under this chapter, which is licensed or required to be licensed to operate a facility.
  5. "Licensing agency" means the Agency of Human Services or the department or division within the Agency as the Secretary of Human Services may designate.
  6. "Nursing care" means the performance of services necessary in caring for persons who are sick or injured that require specialized knowledge, judgment, and skill and meet the standards of nursing as defined in 26 V.S.A. § 1572 .
  7. "Nursing home" means an institution or distinct part of an institution that is primarily engaged in providing to its residents any of the following:
    1. skilled nursing care and related services for residents who require medical or nursing care;
    2. rehabilitation services for the rehabilitation of persons who are injured, have a disability, or are sick; or
    3. on a 24-hour basis, health-related care and services to individuals who, because of their mental or physical condition, require care and services that can be made available to them only through institutional care.
  8. "Owner" means the holder of the title to the property on or in which the facility is maintained.
  9. "Resident" means any person who lives in and receives services or care in a facility.
  10. "Residential care home" means a place, however named, excluding a licensed foster home, that provides, for profit or otherwise, room, board, and personal care to three or more residents unrelated to the home operator. Residential care homes shall be divided into two groups, depending upon the level of care they provide, as follows:
    1. Level III, which provides personal care, defined as assistance with meals, dressing, movement, bathing, grooming, or other personal needs, or general supervision of physical or mental well-being, including nursing overview and medication management as defined by the licensing agency by rule, but not full-time nursing care; and
    2. Level IV, which provides personal care, as described in subdivision (A) of this subdivision (10), or general supervision of the physical or mental well-being of residents, including medication management as defined by the licensing agency by rule, but not other nursing care.
  11. "Therapeutic community residence" means a place, however named, excluding hospitals as defined by statute, that provides, for profit or otherwise, transitional individualized treatment to three or more residents with major life adjustment problems, such as a substance use disorder, psychiatric disability, or delinquency.
  12. "Insolvent" means:
    1. having generally ceased to pay debts in the ordinary course of business other than as a result of bona fide dispute;
    2. being unable to pay debts as they become due; or
    3. being insolvent within the meaning of federal bankruptcy law.

      Amended 1959, No. 27 , §§ 1-3; 1965, No. 68 , § 1; 1973, No. 153 (Adj. Sess.), § 1; 1975, No. 221 (Adj. Sess.), § 1; 1981, No. 99 , § 1; 1983, No. 176 (Adj. Sess.), §§ 1, 2; 1985, No. 151 (Adj. Sess.), § 1; 1991, No. 208 (Adj. Sess.), § 1, eff. May 27, 1992; 1993, No. 114 (Adj. Sess.), § 1; 1997, No. 61 , §§ 271b, 271c; 2009, No. 36 , § 1; 2011, No. 79 (Adj. Sess.), § 32; 2011, No. 160 (Adj. Sess.), § 6, eff. May 17, 2012; 2013, No. 96 (Adj. Sess.), § 218; 2019, No. 118 (Adj. Sess.), § 1, eff. June 23, 2020; 2021, No. 20 , § 351.

History

Source. 1957, No. 198 , § 3. 1953, No. 114 , § 3.

Editor's note. The text of subdiv. (11) is based on the harmonization of two amendments. During the 2011 Adjourned Session, subdiv. (11) was amended twice, by Act Nos. 79 and 160, resulting in two versions. In order to reflect all of the changes enacted by the Legislature during the 2011 Adjourned Session, the text of Act Nos. 79 and 160 was merged to arrive at a single version of subdiv. (11). The changes that each of the amendments made are described in the amendment notes set out below.

Amendments--2021. Subdiv. (1): Substituted "that" for "which" following "program" in the first sentence.

Subdiv. (7): Substituted "that" for "which" following "institution" in the intro. para.

Subdiv. (7)(C): Substituted "that" for "which" preceding "can be made".

Subdiv. (10): Substituted "that" for "which" preceding "provides" in the first sentence.

Subdiv. (11): Substituted "that" for "which" preceding "provides" and "a substance use disorder" for "alcoholism, drug abuse" following "such as".

Amendments--2019 (Adj. Sess.). Subdiv. (12): Added.

Amendments--2013 (Adj. Sess.). Undesignated paragraph: Substituted "As used in" for "For purposes of".

Subdiv. (2): Substituted "persons who are" for "the" following "home for".

Subdiv. (3): Substituted "persons who are" for "the" following "Home for", and "people who are dying" for "dying people" following "more".

Subdiv. (6): Substituted "persons who are" for "the" following "caring for".

Subdiv. (7)(B): Substituted "persons who are injured, have a disability, or are sick" for "injured, disabled, or sick persons".

Subdiv. (7)(C): Substituted "health-related" for "health related" following "24-hour basis,".

Subdiv. (11): Substituted "psychiatric disability" for "mental illness" following "drug abuse,".

Amendments--2011 (Adj. Sess.) Subdiv. (11): Act No. 79 substituted "hospitals as defined by statute" for "a hospital as defined by statute or the Vermont state hospital".

Act No. 160 substituted "transitional" for "short-term".

Amendments--2009. Rewrote the section.

Amendments--1997 Subdiv. (9): Inserted "assisted living residence" following "nursing home".

Subdiv. (11): Added.

Amendments--1993 (Adj. Sess.). Subdiv. (10): Added.

Amendments--1991 (Adj. Sess.). Subdiv. (1)(A): Deleted "medication" following "grooming" and inserted "and medication management as defined by the licensing agency by rule" following "overview".

Subdiv. (1)(B): Deleted "but not" preceding "including" and inserted "medication management as defined by the licensing agency by rule, but not other nursing care" thereafter.

Subdiv. (7): Amended generally.

Amendments--1985 (Adj. Sess.). Subdiv. (1): Substituted "residential" for "community" in two places.

Subdiv. (1)(B): Inserted "or general supervision of the physical or mental well-being of residents" preceding "but not".

Subdiv. (9): Added.

Amendments--1983 (Adj. Sess.). Subdiv. (1)(A): Inserted "medication" following "grooming", and deleted "supervision, and administration of medication" following "overview".

Subdiv. (6): Amended generally.

Amendments--1981. Subdiv. (1): Amended generally.

Amendments--1975 (Adj. Sess.). Rewrote subdiv. (1), deleted former subdiv. (2), and redesignated former subdivs. (3)-(9) as subdivs. (2)-(8).

Amendments--1973 (Adj. Sess.). Section amended generally.

Amendments--1965. Designated the existing paragraphs of the section as subdivisions, added subdiv. (3), and rewrote subdiv. (7).

Amendments--1959. Paragraph I: Deleted "or similar institution” following "nursing home”.

Paragraph II: Amended generally.

Prior law. 18 V.S.A. § 2002.

ANNOTATIONS

1. Nursing home.

As found in this section, the definition of nursing home appears to be significant only for purpose of determining what homes must be licensed. 1960-62 Op. Atty. Gen. 86.

Cited. Huntington v. Department of Social & Rehabilitation Services, 139 Vt. 416, 430 A.2d 460 (1981).

Subchapter 2. Licensing of Long-Term Care Facilities

§ 7103. License.

  1. A person shall not operate a nursing home, assisted living residence, home for persons who are terminally ill, residential care home, or therapeutic community residence without first obtaining a license.
  2. A person shall not operate a nursing home as defined in this chapter or as defined in 18 V.S.A. chapter 46 except under the supervision of an administrator licensed in the manner provided in 18 V.S.A. chapter 46.
  3. Residents of a home for persons who are terminally ill shall receive necessary medical and nursing services, which may be provided through outside providers.

    Amended 1959, No. 27 , § 4; 1964, No. 6 (Sp. Sess.), § 1, eff. March 4, 1964; 1965, No. 68 , § 2; 1969, No. 248 (Adj. Sess.), § 1, eff. April 1, 1970; 1973, No. 153 (Adj. Sess.), § 2; 1975, No. 221 (Adj. Sess.), § 8, eff. July 1, 1977; 1985, No. 151 (Adj. Sess.), § 2; 1993, No. 114 (Adj. Sess.), § 2; 1997, No. 61 , § 271d; 2009, No. 36 , § 1; 2013, No. 96 (Adj. Sess.), § 219.

History

Source. 1957, No. 198 , § 4. 1953, No. 114 , § 4.

Revision note. Substituted "chapter 46 of Title 18" for "chapter 46 of this title" in two places in subsec. (b) in view of the recodification of this chapter by 1989, No. 219 (Adj. Sess.), § 10(c), and 1989, No. 148 (Adj. Sess.), §§ 1, 2(e).

Amendments--2013 (Adj. Sess.). Subsecs. (a) and (c): Substituted "persons who are" for "the" following "home for".

Subsec. (b): Substituted "18 V.S.A. chapter 46" for "chapter 46 of Title 18" twice.

Amendments--2009. Subsec. (a): Deleted "maternity home," preceding "assisted" and inserted ", home for the terminally ill, residential care home" following "residence".

Subsec. (c): Deleted former subsec. (c) and redesignated former subsec. (d) as present subsec. (c); deleted the first sentence of former subsec. (d); deleted "shall be admitted to a Medicare certified hospice and affiliated programs and" following "ill"; inserted ", which may be provided" following "services"; and deleted the last sentence.

Amendments--1997 Subsec. (a): Inserted "assisted living residence" following "maternity home".

Amendments--1993 (Adj. Sess.). Subsec. (d): Added.

Amendments--1985 (Adj. Sess.). Subsec. (c): Substituted "residential" for "community" preceding "care".

Amendments--1975 (Adj. Sess.). Subsec. (c): Added.

Amendments--1973 (Adj. Sess.). Amended subsec. (a) generally, deleted former subsec. (b), and redesignated former subsec. (c) as subsec. (b).

Amendments--1969 (Adj. Sess.). Existing paragraphs in section designated as subsecs. (a) and (b) and subsec. (c) added.

Amendments--1965. Added the last two sentences comprising second paragraph.

Amendments--1964. Substituted "three persons" for "two persons" near the end of the section.

Amendments--1959. Deleted "except facilities operated by any unit or division of federal government" following "hereinafter provided".

Prior law. 18 V.S.A. § 2003.

ANNOTATIONS

1. Operation of home by unlicensed person.

Neither the Board of Health nor the Board of Examiners was empowered to enact a regulation that would purport to allow a nursing home to be administered by an unlicensed person, even though only for a short period of time, as when a substitute was needed on a temporary basis. 1970-72 Op. Atty. Gen. 352.

Cited. Vermont Agency of Transportation v. Sumner, 142 Vt. 577, 460 A.2d 446 (1983).

§ 7104. Application.

An application for a license shall be made annually to the licensing agency upon forms provided by it and shall contain such information as the licensing agency reasonably requires.

Amended 1965, No. 68 , § 3; 1975, No. 221 (Adj. Sess.), § 2; 1991, No. 253 (Adj. Sess.), § 9.

History

Source. 1953, No. 114 , § 5.

Amendments--1991 (Adj. Sess.). Deleted "fee" following "application" in the section heading and deleted the second sentence.

Amendments--1975 (Adj. Sess.). Rewrote the last sentence.

Amendments--1965. Added "plus $1.00 per licensed bed" following "$5.00" in the last sentence.

Prior law. 18 V.S.A. § 2004.

§ 7105. License requirements.

  1. Upon receipt of an application for license, the licensing agency shall issue a full license when it has determined that the applicant and facilities meet the standards established by the licensing agency. Licenses issued under this chapter shall expire one year after date of issuance or upon such uniform dates annually as the licensing agency may prescribe by rule. Licenses shall be issued only for the premises and persons named in the application and shall not be transferable or assignable. Licenses shall be posted in a conspicuous place on the licensed premises.
  2. In its discretion, the licensing agency may issue a temporary license permitting operation of a nursing home, assisted living residence, therapeutic community residence, residential care home, or home for persons who are terminally ill for such period or periods and subject to such conditions as the licensing agency deems proper, but in no case shall a nursing home, assisted living residence, therapeutic community residence, residential care home, or home for persons who are terminally ill operate under a temporary license or renewal of a temporary license for a period exceeding 36 months.
  3. An owner, licensee, or administrator shall disclose to the licensing agency any changes in the ownership interests in the company, ownership of any real property, management of the facility, or corporate structure that occur after the date the license is issued.  The licensing agency may require the owner, licensee, or administrator to apply for a new license.

    Amended 1959, No. 27 , § 5; 1965, No. 68 , § 4; 1973, No. 153 (Adj. Sess.), § 3; 1975, No. 221 (Adj. Sess.), § 3, eff. July 1, 1976, § 9, eff. July 1, 1977; 1985, No. 151 (Adj. Sess.), § 3; 1997, No. 61 , § 271e; 1997, No. 155 (Adj. Sess.), § 54; 2009, No. 36 , § 1; 2013, No. 96 (Adj. Sess.), § 220; 2021, No. 20 , § 352.

History

Source. 1957, No. 198 , § 5. 1953, No. 114 , § 6.

Amendments--2021. Subsec. (a): In the second sentence, substituted "under this chapter" for "hereunder" following "issued" and "rule" for "regulation" following "prescribe by".

Subsec. (b): Substituted "of a temporary license" for "thereof" following "renewal" near the end of the subsection.

Amendments--2013 (Adj. Sess.). Subsec. (b): Substituted "persons who are" for "the" twice following "home for".

Amendments--2009. Subsec. (b): Inserted ", residential care" following "residence"; deleted "maternity" preceding "home"; inserted "for the terminally ill" following "home" throughout the subsection; and substituted "36 months" for "thirty-six months".

Subsec. (c): Added.

Subsec. (d): Deleted.

Amendments--1997 (Adj. Sess.). In subsec. (a), deleted "and the license fee" after "application for license" in the first sentence and deleted subsec. (c), requiring a fee for a temporary license application.

Amendments--1997 Subsec. (b): Inserted "assisted living residence" following "nursing home" in two places.

Amendments--1985 (Adj. Sess.). Subsec. (d): Substituted "residential" for "community" preceding "care home" in two places.

Amendments--1975 (Adj. Sess.). Subsec. (c): Amended generally.

Subsec. (d): Added.

Amendments--1973 (Adj. Sess.). Subsec. (b): Substituted "therapeutic community residence" for "home for the aged" in two places.

Amendments--1965. Subsec. (b): Inserted "or maternity home" following "home for the aged" in two places.

Subsec. (c): Substituted "plus $1.00 per licensed bed" for "annually" following "$5.00" in the first sentence and added the second sentence.

Amendments--1959. Subsec. (a): Substituted "licensing agency" for "Vermont state health commission" at the end of the first sentence.

Prior law. 18 V.S.A. § 2005.

§ 7106. Variance.

  1. The licensing agency may grant a variance from the provisions of this chapter or a rule adopted pursuant to this chapter.
  2. Variances may be granted upon determination that:
    1. strict compliance would impose a substantial hardship on the licensee;
    2. the licensee will otherwise meet the goal of the statutory provision or rule; and
    3. a variance will not result in less protection of the health, safety, and welfare of the residents.
  3. A variance shall not be granted from a provision of this chapter or a rule pertaining to residents' rights.

    Added 1985, No. 151 (Adj. Sess.), § 4; amended 2013, No. 131 (Adj. Sess.), § 88, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Subdiv. (b)(3): Made a minor stylistic change.

Prior law. 18 V.S.A. § 2005a.

§ 7107. Unlicensed homes.

  1. The licensing agency shall adopt rules governing the identification of unlicensed residential care homes, nursing homes, assisted living residences, therapeutic community residences, and homes for persons who are terminally ill.
  2. No physician, surgeon, osteopath, chiropractor, or physician assistant licensed, certified, or registered under the provisions of Title 26; resident physician, intern, or any hospital administrator in any hospital in this State; registered nurse, licensed practical nurse, medical examiner, psychologist, mental health professional, social worker, probation officer, police officer, nursing home administrator, or employee; or owner, operator, or employee of a facility shall knowingly place, refer, or recommend placement of a person to such a facility if that facility is operating without a license.
  3. Any person listed in subsection (b) of this section who is licensed or certified by the State of Vermont or who is employed by the State or a municipality and who knows or has reason to believe that a facility is operating without the license required under this chapter shall report the facility and address of the facility to the licensing agency.
  4. The licensing agency shall investigate any report filed pursuant to this section and conduct an inspection as provided in section 7108 of this title.
    1. Within 30 days following the date on which a license to operate any facility pursuant to this section is revoked or voluntarily relinquished, the operator shall obtain a new license or shall cause all of the residents in the facility to be moved promptly. (e) (1)  Within 30 days following the date on which a license to operate any facility pursuant to this section is revoked or voluntarily relinquished, the operator shall obtain a new license or shall cause all of the residents in the facility to be moved promptly.
    2. The facility shall be responsible for securing suitable alternative placements for the residents and shall be responsible for the cost of the planning for the transition and transportation of the residents to the alternative placements.
    3. Failure to comply with this subsection may result in penalties being assessed against the operator, the owner, or the facility as provided for in section 7111 of this title.

      Added 1985, No. 151 (Adj. Sess.), § 5; amended 1997, No. 61 , § 271f; 2009, No. 36 , § 1; 2013, No. 34 , § 30a; 2013, No. 96 (Adj. Sess.), § 221; 2021, No. 20 , § 353.

History

2013 In subsec. (b), substituted "physician assistant" for "physician's assistant" in accordance with 2013, No. 34 , § 30a.

Amendments--2021. Subsec. (b): Deleted "any" preceding "resident physician", "registered nurse", and "owner, operator".

Subdiv. (e)(1): Substituted "following" for "of" preceding "the date" and inserted "on which" thereafter.

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "adopt rules" for "promulgate regulations" following "agency shall" and "persons who are" for "the" following "home for".

Amendments--2009. Subsec. (a): Deleted "maternity" preceding "homes" and inserted "for the terminally ill" following "homes".

Subsec. (e): Added.

Amendments--1997 Subsec. (a): Inserted "assisted living residences" following "nursing homes".

Prior law. 18 V.S.A. § 2005b.

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. chapter 25.

§ 7108. Inspection; technical assistance.

  1. The licensing agency shall inspect a facility prior to issuing a license under this chapter.
  2. The licensing agency may inspect a facility any time an inspection is authorized under this chapter and any other time it considers an inspection necessary to determine if a facility is in compliance with the provisions of this chapter or the rules adopted pursuant to this chapter.
  3. Authorized inspectors shall at all times without notice have access to all such facilities.
  4. The living quarters of the manager of a facility, for purposes of this chapter, may be subject to inspection only if the inspector has reason to believe the permissible capacity of the facility has been exceeded and only for the purpose of determining if such a violation exists. The inspector shall permit the manager to accompany the inspector on such an inspection.
  5. Within the limits of resources available, the licensing agency may provide technical assistance, education, and information to facilities to assist them to come into or remain in compliance with the provisions of this chapter or the rules adopted pursuant to this chapter.  The failure of the licensing agency to provide assistance under this subsection shall not relieve a facility from its duty to comply with provisions of this chapter or the rules adopted pursuant to this chapter.

    Amended 1973, No. 153 (Adj. Sess.), § 5; 1975, No. 221 (Adj. Sess.), § 4; 1985, No. 151 (Adj. Sess.), § 6; 2013, No. 131 (Adj. Sess.), § 89, eff. May 20, 2014; 2021, No. 20 , § 354.

History

Source. 1957, No. 198 , § 6. 1953, No. 114 , § 9.

Amendments--2021. Subsec. (d): Substituted "if" for "where" following "only" in the first sentence and substituted "the inspector" for "him or her" following "accompany" in the second sentence.

Amendments--2013 (Adj. Sess.). Subsec. (e): Made a minor stylistic change.

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1975 (Adj. Sess.). Deleted "or registered" preceding "in accordance with this chapter" in the first sentence.

Amendments--1973 (Adj. Sess.). Section amended generally.

Prior law. 18 V.S.A. § 2008.

§ 7109. Investigation; complaint.

  1. The licensing agency may investigate whenever it has reason to believe a violation of this chapter or the rules adopted pursuant to this chapter has occurred.
  2. A person who believes that a violation has occurred may file a complaint with the licensing agency.  The licensing agency shall investigate any complaint filed unless it reasonably believes that the complaint is without merit.

    Added 1985, No. 151 (Adj. Sess.), § 7.

History

Prior law. 18 V.S.A. § 2008a.

§ 7110. Violation; notice.

  1. If, as a result of an inspection or investigation, the licensing agency determines that a condition in the facility violates a rule or provision of this chapter, it shall prepare a written notice of violation, which shall state the following:
    1. a description of each condition that constitutes a violation;
    2. each rule or statutory provision alleged to have been violated;
    3. the date by which the violation must be corrected;
    4. sanctions the licensing agency may impose for failure to correct the violation or failure to provide proof of correction by the date specified;
    5. the right to appeal the notice of violation as provided in section 7118 of this title; and
    6. the right to apply for a variance as provided in section 7106 of this title.
  2. The licensing agency may take immediate enforcement action when necessary to eliminate a condition that can reasonably be expected to cause death or serious physical or mental harm to residents or staff before it can be eliminated through the provisions of section 7111 of this title. A licensing agency taking such action shall explain that action and the reasons for it in the notice of violation.

    Added 1985, No. 151 (Adj. Sess.) § 8; amended 2019, No. 118 (Adj. Sess.), § 2, eff. June 23, 2020.

History

Amendments--2019 (Adj. Sess.). Subsec. (b): In the first sentence, substituted "that" for "which" following "condition" and inserted "or mental" preceding "harm".

Prior law. 18 V.S.A. § 2008b.

§ 7111. Enforcement; protection of residents.

  1. The licensing agency shall enforce the provisions of this chapter to protect residents of facilities.
  2. The licensing agency may require a facility to take corrective action to eliminate a violation of a rule or provision of this chapter within a specified period of time. If the licensing agency does require corrective action, the following provisions shall apply:
    1. The licensing agency may, within the limits of resources available to it, provide technical assistance to the facility to enable it to comply with the provisions of this chapter.
    2. The facility shall provide the licensing agency with proof of correction of the violation within the time specified.
    3. If the facility has not corrected the violation by the time specified, the licensing agency may take such further action as it deems appropriate under this section.
    1. The licensing agency may impose an administrative penalty against a facility for failure to correct a violation or failure to comply with a plan of corrective action for such a violation, as follows: (c) (1)  The licensing agency may impose an administrative penalty against a facility for failure to correct a violation or failure to comply with a plan of corrective action for such a violation, as follows:
      1. up to $5.00 per resident or $50.00, whichever is greater, for each day a violation remains uncorrected if the rule or provision violated was adopted primarily for the administrative purposes of the licensing agency;
      2. up to $8.00 per resident or $80.00, whichever is greater, for each day a violation remains uncorrected if the rule or provision violated was adopted primarily to protect the welfare or the rights of residents; and
      3. up to $10.00 per resident or $100.00, whichever is greater, for each day a violation remains uncorrected if the rule or provision violated was adopted primarily to protect the health or safety of residents.
    2. The licensing agency may impose an administrative penalty against a facility of up to $10.00 per resident or $100.00, whichever is greater, for each day a facility operates without a license when either:
      1. the facility has not obtained a license; or
      2. a license has been revoked or voluntarily relinquished and the operator fails to obtain a new license or to cause all of the residents to be moved promptly and appropriately.
    3. For purposes of imposing administrative penalties under this subsection, a violation shall be deemed to have first occurred as of the date of the notice of violation.
  3. The licensing agency may, after notice and an opportunity for a hearing, suspend, revoke, modify, or refuse to renew a license upon any of the following grounds:
    1. violation by the licensee of any of the provisions of this chapter or the rules adopted pursuant to this chapter;
    2. conviction of a crime for conduct that demonstrates the unfitness of the licensee or the principal owner to operate a facility under this chapter;
    3. conduct inimical to the public health, morals, welfare, and safety of the people of the State of Vermont in the maintenance and operation of the premises for which a license is issued;
    4. financial incapacity of the licensee to provide adequate care and services; or
    5. failure to comply with a final decision or action of the licensing agency.
  4. In the interest of the public health and safety, and pursuant to the provisions for the summary suspension of a license in 3 V.S.A. § 814(c) , the licensing agency shall suspend the license of a nursing home that has been administered by a provisional administrator licensed under 18 V.S.A. § 2061 for the preceding 90 days and which nursing home is not presently administered by an administrator who is permanently licensed under 18 V.S.A. § 2055 .
  5. The licensing agency may suspend admissions to a facility or transfer residents from a facility to an alternative placement, or both, for a violation that may directly impair the health, safety, or rights of residents or for operating without a license. Residents subject to transfer shall:
    1. be allowed to participate in the decision-making process of the agency concerning the selection of an alternative placement;
    2. receive adequate notice of a pending transfer; and
    3. be allowed to contest their transfer in accordance with the procedures in section 7118 of this title.
  6. The licensing agency, the Attorney General, or a resident may bring an action for injunctive relief against a facility in accordance with the Rules of Civil Procedure to enjoin any act or omission that constitutes a violation of this chapter or rules adopted pursuant to this chapter.
  7. The Commissioner of Disabilities, Aging, and Independent Living, the Attorney General, or a resident or a resident's legal representative may bring an action as provided for in subchapter 3 of this chapter.
  8. The licensing agency may enforce a final order by filing a civil action in the Superior Court in the county in which the facility is located, or in Washington Superior Court.
  9. The remedies provided in this chapter are cumulative.

    Added 1985, No. 151 (Adj. Sess.), § 9; amended 2009, No. 36 , § 1; 2011, No. 63 , § E.329.1; 2021, No. 20 , § 355.

History

Revision note. Substituted "section 2061 of Title 18" for "section 2061 of this title" and "section 2055 of Title 18" for "section of this title" in subsec. (e) in view of the recodification of this chapter by 1989, No. 219 (Adj. Sess.), § 10(c), and 1989, No. 148 (Adj. Sess.), §§ 1, 2(e).

Amendments--2021. Subsec. (a): Inserted "the" preceding "provisions".

Subsec. (b): Amended generally.

Subdiv. (d)(2) and subsecs. (f), (g): Substituted "that" for "which".

Subsec. (e): Added "and" preceding "safety"; and substituted "that" for "which".

Amendments--2011. Subsecs. (i) and (j): Added.

Amendments--2009. Section amended generally.

Prior law. 18 V.S.A. § 2008c.

ANNOTATIONS

1. Applicability.

Plaintiff, a shooting range owner who was shot by a resident of defendant therapeutic residential community, was not entitled to sue defendant for damages on account of its alleged violations of the statute governing protection of residents of long-term care facilities and associated regulations because it was clear from the plain language of the statute and the Licensing and Operating Regulations for Therapeutic Community Residences that their overarching purpose was to protect the class of residents of long-term-care facilities, not members of the public generally. Montague v. Hundred Acre Homestead, LLC, 209 Vt. 514, 208 A.3d 609 (2019).

§ 7112. Confidential information.

  1. Information received by the licensing agency through filed reports, inspection, or as otherwise authorized under this chapter, except information that pertains to unsubstantiated complaints or the identity of residents and complainants, shall be made available to the public.
  2. Prior to release of information, the Commissioner shall consult with representatives from the nursing home industry and the Office of State Long-Term Care Ombudsman to develop:
    1. Guidelines for the release of information to the public that ensure the confidentiality and privacy of complainants and individuals who are receiving or have received care or services in nursing facilities in conformance with State and federal requirements.
    2. Indicators, derived from information databases maintained by the licensing agency and the Division of Rate Setting, which shall be disseminated to consumers in a readily understandable format designed to facilitate consumers' ability to compare the quality of care provided by nursing facilities. The Commissioner shall continually update quality indicators and refine and improve the information disseminated to consumers.

      Added 2011, No. 63 , § E.329.2.

History

2011. Inserted "which" following "rate setting" for grammatical purposes.

Former § 7112. Former § 7112, relating to confidential information, was derived from 1953, No. 114 , § 11 and amended by 1985, No. 151 (Adj. Sess.), § 10; 1995, No. 138 (Adj. Sess.), § 15; No. 171 (Adj. Sess.), § 11; 1997, No. 131 (Adj. Sess.), § 1; and No. 147 (Adj. Sess.), § 268.

§ 7113. Repealed. 2009, No. 36, § 1.

History

Former § 7113. Former § 7113, relating to the interpretation of chapter, was derived from 1953, No. 114 , § 11 and amended by 1965, No. 68 , § 5.

§ 7114. Report.

The licensee shall file annually and on request such information, data, statistics, or schedules as the licensing agency may require. The agency shall have the power to examine the books and accounts of any facility operated by any licensee if it is the opinion of the Secretary that the examination is necessary to carry out the purposes of this chapter.

Amended 1975, No. 221 (Adj. Sess.), § 5.

History

Source. 1953, No. 114 , § 12.

Amendments--1975 (Adj. Sess.). Rewrote the first sentence and added the second sentence.

Prior law. 18 V.S.A. § 2011.

Cross References

Cross references. Filing of data, statistics, schedules, and information with Division of Rate Setting, see § 908 of this title.

§ 7115. Exception.

Nothing in this chapter or the rules adopted pursuant to this chapter shall be construed as authorizing the supervision, regulation, or control of the remedial care or treatment of residents or patients in any home or institution conducted for those who rely upon treatment by prayer or spiritual means in accordance with the creed or tenets of a recognized church or religious denomination, except as to the sanitary and safe condition of the premises, cleanliness of operation, and its physical equipment.

Amended 2021, No. 20 , § 356.

History

Source. 1953, No. 114 , § 13.

Amendments--2021. Deleted "and regulations" following "rules" and substituted "to this chapter" for "thereto" following "pursuant”.

Prior law. 18 V.S.A. § 2012.

§ 7116. Criminal penalty.

A person who knowingly violates the licensure, reporting of unlicensed facilities, or confidentiality requirements of this chapter or the provisions relating to placing, referring, or recommending placement of a person in an unlicensed facility shall be fined not more than $500.00 or imprisoned not more than six months, or both.

Amended 1959, No. 27 , § 6; 1964, No. 6 (Sp. Sess.), § 2, eff. March 4, 1964; 1973, No. 153 (Adj. Sess.), § 6; 1985, No. 151 (Adj. Sess.), § 11; 2013, No. 131 (Adj. Sess.), § 90, eff. May 20, 2014.

History

Codification. This section was derived from 1953, No. 114 , § 14, as added by 1959, No. 27 , § 6.

Amendments--2013 (Adj. Sess.). Made a minor stylistic change.

Amendments--1985 (Adj. Sess.). Section amended generally.

Amendments--1973 (Adj. Sess.). Section amended generally.

Amendments--1964. Section amended generally.

Prior law. 18 V.S.A. § 2013.

§ 7117. Rules.

  1. In accordance with 3 V.S.A. chapter 25, the Secretary of Human Services may adopt reasonable rules to carry out the provisions of this chapter and may prescribe minimum standards of care, program administration, and sanitation for facilities licensed under this chapter.
  2. No later than January 1, 1997, the Secretary of Human Services shall adopt comprehensive rules for licensing of nursing homes to include criteria deemed appropriate by the Secretary, including criteria for accessibility, quality, and safety standards. The rules for nursing home licensing shall:
    1. require that nursing facilities provide the care and services necessary to help each resident attain or maintain the highest practicable physical, mental, and psychosocial well-being in accordance with a comprehensive assessment and plan of care and prevailing standards of care as determined by the Commissioner of Disabilities, Aging, and Independent Living; and
    2. promote a standard of care that ensures that the ability of each resident to perform activities of daily living does not diminish unless the resident's ability is diminished solely as a result of a change in the resident's clinical condition.

      Added 1973, No. 153 (Adj. Sess.), § 7; amended 1975, No. 221 (Adj. Sess.), § 6; 1981, No. 99 , § 2; 1995, No. 160 (Adj. Sess.), § 18; 2013, No. 131 (Adj. Sess.), § 91, eff. May 20, 2014.

History

Amendments--2013 (Adj. Sess.). Subsec. (a): Substituted "3 V.S.A. chapter 25" for "chapter 25 of Title 3" following "In accordance with".

Subdiv. (b)(1): Substituted "Commissioner of Disabilities, Aging, and Independent Living; and" for "commissioner of aging and disabilities; and" at the end.

Amendments--1995 (Adj. Sess.) Subsec. (a): Substituted "secretary of human services" for "licensing agency" following "Title 3, the".

Subsec. (b): Amended generally.

Amendments--1981. Designated the existing provisions of the section as subsec. (a), substituted "may adopt reasonable rules" for "may thereafter adopt, amend or repeal reasonable rules" therein, and added subsec. (b).

Amendments--1975 (Adj. Sess.). Substituted "adopt" for "make and promulgate, modify" preceding "reasonable rules" and deleted "and regulations" thereafter and substituted "program administration" for "safety".

Prior law. 18 V.S.A. § 2014.

Promulgation of regulations ensuring adequacy of personal funds for residents. 1985, No. 242 , (Adj. Sess.), § 138, as amended by 1987, No. 3 , § 20, eff. March 2, 1987, provided in part: "The secretary of the agency of human services shall promulgate regulations to ensure that Supplemental Security Income recipients residing in community care homes licensed under Title 18, Chapter 45 [recodified as this chapter] will retain funds adequate to meet their personal needs after paying their monthly charges to the home."

ANNOTATIONS

Analysis

1. Use of physical restraints.

Interpretation of community care home regulation by Department of Social and Rehabilitation Services that resulted in prohibition of restraints for any purpose, absent a waiver from the Department, was not consistent with the purpose of this chapter, which was designed to promote safe surroundings, adequate care, and humane treatment for persons in facilities; where restraints were used to enhance to safety of a home's residents, and the method used was humane, this section did not permit their total prohibition. Huntington v. Department of Social & Rehabilitation Services, 139 Vt. 416, 430 A.2d 460 (1981).

2. Notice of surrender of license.

Regulation could require that adequate prior written notice be given to Department and the patient or his or her family or representative if the licensee decided to surrender his or her license or not to renew the same. 1962-64 Op. Atty. Gen. 194.

§ 7118. Appeals.

  1. A person aggrieved by a decision or action of the licensing agency may file a request for a fair hearing with the Human Services Board as provided in 3 V.S.A. § 3091 .
  2. A resident subject to transfer under subsection 7111(f) of this title may contest such transfer by filing a request for a fair hearing with the Human Services Board as provided in 3 V.S.A. § 3091 .

    Added 1973, No. 153 (Adj. Sess.), § 8; amended 1985, No. 151 (Adj. Sess.), § 12.

History

2021 In subsec. (b), substituted "Human Services Board” for "Board of Human Services” to correct the name of the entity.

Amendments--1985 (Adj. Sess.). Designated existing provisions of section as subsec. (a) and substituted "a person" for "an applicant or licensee" preceding "aggrieved" at the beginning of that subsection and added subsec. (b).

Prior law. 18 V.S.A. § 2015.

Subchapter 3. Health Care Services

§ 7151. Advanced practice registered nurse; scope of practice.

Except to the extent prohibited under federal law for purposes of federal financial participation, a nursing home shall permit a licensed advanced practice registered nurse providing services at the nursing home to perform all services within the advanced practice registered nurse's scope of practice, including:

  1. when providing primary care services, serving as the primary care provider of record;
  2. performing acts of medical diagnosis, including ordering and interpreting diagnostic tests and procedures;
  3. prescribing medications;
  4. prescribing medical, therapeutic, and corrective measures;
  5. initiating written and verbal orders to other health care providers; and
  6. managing and evaluating care.

    Added 2017, No. 48 , § 34, eff. May 23, 2017.

Subchapter 4. Receivership Proceedings

History

Amendments--2017. 2017, No. 48 , § 33, effective May 23, 2017, redesignated the provisions of subchapter 3, comprising sections 7201-7217, as subchapter 4.

Repeal of sunset date. 2009, No. 36 , § 4(a), which had provided for the repeal of this subchapter, effective June 30, 2011, was repealed by 2011, No. 12 , § 1.

§ 7201. Policy.

The purpose of this subchapter is to provide for the receivership of a long-term care facility in order to ensure safe surroundings, adequate care, and humane treatment; to safeguard the health of, safety of, and continuity of care to residents; and to protect residents from the adverse health effects caused by abrupt or unsuitable transfer of such persons cared for in these facilities.

Added 2009, No. 36 , § 2.

§ 7202. Application for receiver.

  1. The Commissioner of Disabilities, Aging, and Independent Living or the Attorney General may file a complaint in the Superior Court of the county in which the licensing agency or the facility is located, requesting the appointment of a receiver when:
    1. a licensee intends to close and has not secured suitable placements for its residents at least 30 days prior to closure;
    2. a situation; a physical condition; or a practice, method, or operation that presents imminent danger of death or serious physical or mental harm to residents exists in a facility, including imminent or actual abandonment of a facility;
    3. a facility is in substantial or habitual violation of the standards of health, safety, or resident care established under State rules or federal regulations to the detriment of the welfare of the residents or clients;
    4. the facility is insolvent; or
    5. the licensing agency has suspended, revoked, or modified the existing license of the facility.
    1. A resident or resident's representative may petition the licensing agency or the Attorney General to seek a receivership under this section. If the licensing agency or Attorney General denies the petition or fails to file a complaint within five days, the party bringing the petition may file a complaint in the Superior Court of the county in which the licensing agency or the facility is located, requesting the appointment of a receiver on the same grounds listed in subsection (a) of this section. Prior to a hearing for the appointment of a receiver, the Commissioner of Disabilities, Aging, and Independent Living shall file an affidavit describing the results of any investigation conducted, including a statement of findings with respect to the resident's petition and the reasons for not filing an action under this section. The Commissioner shall include the two most recent reports of deficiencies in the facility, if any. (b) (1)  A resident or resident's representative may petition the licensing agency or the Attorney General to seek a receivership under this section. If the licensing agency or Attorney General denies the petition or fails to file a complaint within five days, the party bringing the petition may file a complaint in the Superior Court of the county in which the licensing agency or the facility is located, requesting the appointment of a receiver on the same grounds listed in subsection (a) of this section. Prior to a hearing for the appointment of a receiver, the Commissioner of Disabilities, Aging, and Independent Living shall file an affidavit describing the results of any investigation conducted, including a statement of findings with respect to the resident's petition and the reasons for not filing an action under this section. The Commissioner shall include the two most recent reports of deficiencies in the facility, if any.
    2. If the court finds the grounds listed in subsection (a) of this section are not met, the court may dismiss the complaint without a hearing as provided for in the Vermont Rules of Civil Procedure.
    1. The licensing agency shall be deemed a necessary party under Rule 19(a) of the Vermont Rules of Civil Procedure. A temporary receiver shall be a necessary party after the temporary receiver is appointed and shall remain a party until a receiver is appointed under section 7204 of this chapter. A receiver appointed under section 7204 of this chapter shall be deemed a necessary party under Rule 19(a) of the Vermont Rules of Civil Procedure. (c) (1)  The licensing agency shall be deemed a necessary party under Rule 19(a) of the Vermont Rules of Civil Procedure. A temporary receiver shall be a necessary party after the temporary receiver is appointed and shall remain a party until a receiver is appointed under section 7204 of this chapter. A receiver appointed under section 7204 of this chapter shall be deemed a necessary party under Rule 19(a) of the Vermont Rules of Civil Procedure.
    2. The entity filing the complaint shall notify the State Long-Term Care Ombudsman and the mortgage holder upon filing of the complaint.

      Added 2009, No. 36 , § 2; amended 2021, No. 20 , § 357.

History

Amendments--2021. Subdiv. (a)(3): Added "rules" following "State".

§ 7203. Appointment of temporary receiver.

  1. A motion to appoint a temporary receiver may be filed with the complaint or at any time prior to the hearing on the merits provided for in section 7204 of this chapter. The motion shall be accompanied by an affidavit alleging facts necessary to show the grounds for the receivership and the necessity for appointing a temporary receiver prior to the hearing on the merits. A motion for prejudgment attachment under Rule of Civil Procedure 4.1(b)(3) may also be filed with the complaint or at any time prior to the hearing on the merits.
  2. The court may appoint a temporary receiver ex parte when the court finds that there is a reasonable likelihood that:
      1. a licensee intends to close the facility and has not secured suitable placements for its residents prior to closure; or (1) (A) a licensee intends to close the facility and has not secured suitable placements for its residents prior to closure; or
      2. a situation; a physical condition; or a practice, method, or operation presents imminent danger of death or serious physical or mental harm to residents; and
    1. the situation must be remedied immediately to ensure the health, safety, and welfare of the residents of the facility.
  3. If the order for temporary receivership is granted, the complaint and order shall be served on the owner, licensee, or administrator and shall be posted in a conspicuous place in the facility no later than 24 hours after issuance.

    Added 2009, No. 36 , § 2.

§ 7204. Appointment of receiver; notice.

    1. Unless the complaint is dismissed as provided for in section 7202 of this chapter or parties agree to a later date, the court shall hold a hearing on the merits to appoint a receiver within 10 days of filing the complaint. The court shall hold a hearing on the merits even when the court has appointed a temporary receiver as provided for in section 7203 of this chapter. (a) (1)  Unless the complaint is dismissed as provided for in section 7202 of this chapter or parties agree to a later date, the court shall hold a hearing on the merits to appoint a receiver within 10 days of filing the complaint. The court shall hold a hearing on the merits even when the court has appointed a temporary receiver as provided for in section 7203 of this chapter.
    2. Notice of the hearing shall be served on the owner, the licensee, the mortgage holder, the State Long-Term Care Ombudsman, and the licensing agency not less than five days before the hearing. If the owner or the licensee cannot be served, the court shall specify an alternative form of notice.
  1. The licensee shall post notice of the hearing, in a form approved by the court, in a conspicuous place in the facility for not less than five days before the date of the hearing.

    Added 2009, No. 36 , § 2.

§ 7205. Appointment of receiver; recommendations by licensing agency.

Not less than two days prior to the hearing on the merits, the Commissioner shall file with the court a list of recommended persons to consider for appointment as the receiver, which may include licensed nursing home administrators or other qualified persons with experience in the delivery of health care services and the operation of a long-term care facility. The list shall include a minimum of three recommended persons and shall include the names and the qualifications of the persons.

Added 2009, No. 36 , § 2.

§ 7206. Appointment of receiver; hearing and order.

  1. After the hearing on the merits, the court may appoint a receiver from the list provided by the licensing agency if it finds that one or more of the grounds set forth in section 7202 of this chapter is satisfied, and that the person is qualified to perform the duties of a receiver as provided for in section 7205 of this chapter. The court's determination of whether one or more of the grounds set forth in section 7202 of this chapter is satisfied shall be based on the condition of the facility at the time the complaint requesting the appointment of a receiver was filed.
  2. The court shall set a reasonable compensation for the receiver and may require the receiver to furnish a bond with surety as the court may require. Any expenditure, including the compensation of the receiver, shall be paid from the revenues of the facility.
  3. The court may order limitations and conditions on the authority of the receiver provided for in section 7207 of this chapter. The order shall divest the owner and licensee of possession and control of the facility during the period of receivership under the conditions specified by the court.
  4. An order issued pursuant to this section shall confirm on the receiver all rights and powers described in section 7207 of this chapter and shall provide the receiver with the authority to conduct any act authorized under this section, including managing the accounts, banking transactions, and payment of debts.
  5. An order appointing a receiver under this chapter has the effect of a license for the duration of the receivership and of suspending the license of the licensee. The receiver shall be responsible to the court for the conduct of the facility during the receivership, and a violation of rules and regulations governing the conduct of the facility, if not promptly corrected, shall be reported by the licensing agency to the court. The order shall not remove the obligation of the receiver to comply with all relevant State rules and federal regulations applicable to the facility.
  6. The court shall order regular accountings by the receiver at least semiannually.

    Added 2009, No. 36 , § 2; amended 2019, No. 118 (Adj. Sess.), § 3, eff. June 23, 2020; 2021, No. 20 , § 358.

History

Amendments--2021. Subsec. (e): Added "rules and" preceding "regulations" in the second sentence; and, in the last sentence, deleted "federal and" preceding "State rules" and inserted "and federal regulations" thereafter.

Amendments--2019 (Adj. Sess.). Subsec. (a): In the first sentence, inserted "or more" preceding "of the grounds" and inserted "set forth" thereafter; and added the second sentence.

§ 7207. Powers and duties of receiver.

  1. A receiver shall not take any actions or assume any responsibilities inconsistent with the purposes of this subchapter or the duties specifically provided for in this section.
  2. Unless otherwise ordered by the court and subject to the limitations provided for in sections 7208 through 7211 of this chapter, the receiver appointed under this subchapter shall:
    1. notify residents of the receivership and shall provide written notice by first-class mail to the last known address of the next of kin after the facility is placed in receivership;
    2. operate the facility;
    3. remedy the conditions that constituted grounds for the receivership;
    4. remedy violations of State rules and federal regulations governing the operation of the facility;
    5. protect the health, safety, and welfare of the residents, including the correction or elimination of any deficiency of the facility that endangers the safety or health of the residents;
    6. preserve the assets and property of the residents, the owner, and the licensee;
    7. hire, direct, manage, and discharge any employees, including the administrator or manager of the facility;
      1. apply the revenues of the facility to current operating expenses; (8) (A) apply the revenues of the facility to current operating expenses;
      2. receive and expend in a reasonable and prudent manner the revenues of the facility due during the 30-day period preceding the date of appointment and becoming due thereafter; and
      3. to the extent possible, apply the revenues of the facility to debts incurred by the licensee prior to the appointment of the receiver;
    8. continue the business of the facility and the care of residents;
    9. file monthly reports containing information as required by the licensing agency to the owner and the licensing agency; and
    10. exercise such additional powers and perform such additional duties as ordered by the court.

      Added 2009, No. 36 , § 2; amended 2021, No. 20 , § 359.

History

Amendments--2021. Subdiv. (b)(4): Deleted "federal and" preceding "State" and inserted "rules and federal" thereafter.

§ 7208. Limitations; corrections of conditions.

    1. Except as provided in subsection (b) of this section, if the total cost of correcting conditions that constituted grounds for the receivership and violations of State rules and federal regulations governing the operation of the facility or of other health and safety issues exceeds $5,000.00, the receiver shall notify the mortgage holder, licensee, and owner of the conditions needing correcting and the estimated amount needed to correct the condition. (a) (1)  Except as provided in subsection (b) of this section, if the total cost of correcting conditions that constituted grounds for the receivership and violations of State rules and federal regulations governing the operation of the facility or of other health and safety issues exceeds $5,000.00, the receiver shall notify the mortgage holder, licensee, and owner of the conditions needing correcting and the estimated amount needed to correct the condition.
    2. The mortgage holder, owner, or licensee shall have five days from the date of mailing of the notice to apply to the court to determine the reasonableness of the expenditure by the receiver.
    3. If the mortgage holder, owner, or licensee files a motion objecting to the corrections, the receiver shall not correct the conditions until ordered by the court.
  1. If the condition constitutes a situation; physical condition; or a practice, method, or operation that presents imminent danger of death or serious physical or mental harm to residents and the estimate of the total cost of the correction exceeds $10,000.00, the receiver shall notify the mortgage holder, owner, and licensee who may object to the court as provided in subsection (a) of this section. The receiver may proceed with the corrections pending a hearing and order of the court.

    Added 2009, No. 36 , § 2; amended 2021, No. 20 , § 360.

History

Amendments--2021. Subdiv. (a)(1): Deleted "for" following "provided", deleted "federal and" preceding "State", and inserted "rules and federal" following "State".

Subsec. (b): Amended generally.

§ 7209. Limitations; payment of debts.

The receiver shall petition the court when debts incurred prior to appointment of the receiver appear extraordinary, of questionable validity, or unrelated to the normal and expected maintenance and operation of the facility, or where payment of the debts will interfere with the purposes of the receivership. The court shall determine the order of priority of debts, with first priority given to expenditures for direct care of current residents.

Added 2009, No. 36 , § 2.

§ 7210. Limitations; authority to borrow.

  1. In the event that the receiver does not have sufficient funds to cover expenses needed to prevent or remove jeopardy to the residents or to pay the debts accruing to the facility, the receiver may petition the court for permission to borrow for these purposes.
  2. Notice of the receiver's petition to the court for permission to borrow must be given to the owner, the licensee, the mortgage holder, and the licensing agency.
  3. The court may, after hearing, authorize the receiver to borrow money upon specified terms of repayment and to pledge security, if necessary, if the court determines that the facility should not be closed and that the loan is reasonably necessary to prevent or remove jeopardy, or if it determines that the facility should be closed and that the expenditure is necessary to prevent or remove jeopardy to residents for the limited period of time when they are awaiting transfer.

    Added 2009, No. 36 , § 2.

§ 7211. Limitations; closure of the facility.

  1. The receiver shall not close the facility without leave of the court.
  2. The court shall consider the protection of residents and shall prevent the closure of facilities that, under proper management, are likely to be financially viable. This section shall not be construed as a method of financing major repair or capital improvements to facilities that have been allowed to deteriorate because the owner or licensee has been unable or unwilling to secure financing by conventional means.
  3. In ruling on a motion to close the facility, the court shall consider:
    1. the rights and best interests of the residents;
    2. the availability of suitable alternative placements;
    3. the rights, interest, and obligations of the owner and licensee;
    4. the licensure status of the facility; and
    5. the need for the facility in the geographic area.
  4. When a facility is closed, the receiver shall provide for the orderly transfer of residents to mitigate trauma caused by the transfer to another facility.

    Added 2009, No. 36 , § 2; amended 2021, No. 20 , § 361.

History

Amendments--2021. Subsec. (a): Substituted "shall" for "may" following "receiver".

Subsec. (b): Substituted "shall" for "may" following "section" in the second sentence.

§ 7212. Writ of possession.

After notice and a hearing, the court may issue a writ of possession as provided for in 12 V.S.A. § 4854 on behalf of the receiver for specific real or personal property related or pertaining to the facility.

Added 2009, No. 36 , § 2.

§ 7213. Attachment; trustee process.

Revenues held by or owing to the receiver in connection with the operation of the facility are exempt from attachment as provided for in 12 V.S.A. chapter 123 and trustee process as provided for in 12 V.S.A. chapter 121, including process served prior to the institution of receivership proceedings.

Added 2009, No. 36 , § 2.

§ 7214. Avoidance of contracts.

  1. The court may grant a motion filed by the receiver to avoid a lease, mortgage, secured transaction, or other contract entered into by the owner or licensee of the facility if the court finds that the agreement:
    1. was entered into for a fraudulent purpose or to hinder or delay creditors;
    2. including a rental amount, price, or rate of interest, was unreasonable or excessive at the time the agreement was entered into; or
    3. is unrelated to the operation of the facility.
    1. The receiver shall send notice of the motion to any known owners and mortgage holder of the property, the licensing agency, and the State Long-Term Care Ombudsman at the time of filing. (b) (1)  The receiver shall send notice of the motion to any known owners and mortgage holder of the property, the licensing agency, and the State Long-Term Care Ombudsman at the time of filing.
    2. The court shall hold a hearing on the receiver's motion to avoid a contract within 15 days.
  2. If the receiver is in possession of real estate or goods subject to a contract or security interest that the receiver is permitted to avoid under this section and if the real estate or goods are necessary for the continued operation of the facility, the court may set a reasonable rental amount, price, rate of interest, or replacement contract term to be paid by the receiver during the term of the receivership.
  3. Payment by the receiver of the amount determined by the court to be reasonable is a defense to an action against the receiver for payment or for the possession of the subject goods or real estate by a person who received notice.
  4. Notwithstanding any provision of this section to the contrary, there shall not be a foreclosure or eviction during the receivership by any person if the foreclosure or eviction would, in view of the court, serve to defeat the purpose of the receivership.

    Added 2009, No. 36 , § 2; amended 2021, No. 20 , § 362.

History

Amendments--2021. Subsec. (e): Inserted "any provision of" following "Notwithstanding" and "to the contrary" following "section", and substituted "shall" for "may" preceding "not be a foreclosure".

§ 7215. Obligations of the owner or licensee.

  1. A licensee, owner, manager, employee, or such person's agent shall cooperate with the receiver in any proceeding under this chapter, including replying promptly to any inquiry from the receiver or the licensing agency requesting a reply and making available to the receiver any books, accounts, documents, or other records or information or property pertaining to operation of the facility in his or her possession, custody, or control. A person shall not obstruct or interfere with the receiver in the conduct of any receivership.
  2. This section shall not be construed to abridge otherwise existing legal rights, including the right to resist a petition for receivership or revocation or suspension of licensure.
    1. After notice of the receiver's appointment, a person who fails to cooperate with the receiver or any person who obstructs or interferes with the receiver in the conduct of the receivership shall be assessed a civil penalty of not more than $10,000.00. (c) (1)  After notice of the receiver's appointment, a person who fails to cooperate with the receiver or any person who obstructs or interferes with the receiver in the conduct of the receivership shall be assessed a civil penalty of not more than $10,000.00.
    2. A person who violates this subsection may be subject to the revocation or suspension of a nursing home administrator's license or a license to operate a facility.

      Added 2009, No. 36 , § 2.

§ 7216. Review and termination.

  1. The court shall review the necessity of the receivership at least semiannually.
  2. Either party or the Commissioner of Disabilities, Aging, and Independent Living may petition the court to terminate the receivership. The petition shall include a certification from the Commissioner or designee that the conditions that prompted the appointment have been corrected or, in the case of a discontinuance of operation, when the residents are safely relocated.
  3. The petitioner shall send notice of the petition to terminate the receivership to the mortgage holder, the licensing agency, and the State Long-Term Care Ombudsman at the time of filing.
  4. A receivership shall not be terminated in favor of the former or the new licensee unless that person assumes all obligations incurred by the receiver and provides collateral or other assurances of payment considered sufficient by the court.
  5. At the time of termination of the receivership, the court shall lift the suspension or revoke the license of the licensee.

    Added 2009, No. 36 , § 2; amended 2021, No. 20 , § 363.

History

Amendments--2021. Subsec. (d): Substituted "shall" for "may" following "receivership".

§ 7217. Duties of licensing agency.

The licensing agency shall have the duty to provide information to residents of long-term care facilities for which a receiver has been appointed by the court. When applicable, the licensing agency shall assist in the process of transferring residents to another long-term care facility, including providing information about facilities with available openings.

Added 2009, No. 36 , § 2.

CHAPTER 73. NURSING HOME RESIDENTS' BILL OF RIGHTS

Sec.

§ 7301. Nursing Home Residents' Bill of Rights.

The General Assembly hereby adopts the Nursing Home Residents' Bill of Rights as follows:

  1. The governing body of the facility shall establish written policies regarding the rights and responsibilities of residents and, through the administrator, is responsible for development of, and adherence to, procedures implementing such policies. These policies and procedures shall be made available to residents; to any guardians, next of kin, sponsoring agency, or representative payees selected pursuant to subsection 205(j) of the Social Security Act, and Subpart Q of 20 C.F.R. part 404; and to the public.
  2. The staff of the facility shall ensure that, at a minimum, each individual admitted to the facility:
    1. Is fully informed, as evidenced by the resident's written acknowledgment, prior to or at the time of admission and during the stay, of these rights and of all rules and regulations governing resident conduct and responsibilities. Reasonable accommodation shall be made to communicate the Residents' Bill of Rights to residents with communication impairments and residents who speak a language other than English.
    2. Is fully informed, prior to or at the time of admission and during the stay, of services available in the facility and of related charges, including any charges for services not covered under Title XVIII or XIX of the Social Security Act, or not covered by the facility's basic per diem rate, including the facility's policy on providing toiletries, adult briefs, wheelchairs, and all personal care and medical items. The facility shall inform residents in writing about Medicaid and Medicare eligibility and what is covered under those programs, including information on resource limits and allowable uses of the resident's income for items and services not covered by Medicaid and Medicare. The facility shall inform residents or their guardians or agents in writing about eligibility for hospice services and the circumstances under which hospice services may be available.
    3. Is fully informed, by a physician, of the medical condition, and is afforded the opportunity to participate in the planning of the medical treatment and to refuse to participate in experimental research.
    4. Is transferred or discharged only for medical reasons, or for the resident's welfare or that of other residents, or for nonpayment of the resident's stay (except as prohibited by Title XVIII or XIX of the Social Security Act), and is given reasonable advance notice to ensure orderly transfer or discharge, and such actions are documented in the resident's medical record. Residents shall be notified in writing of the proposed transfer or discharge and reasons for it at least 72 hours before a transfer within the facility and 30 days before a discharge from the facility. In cases in which the health or safety of individuals would be endangered, or an immediate transfer or discharge is required by the resident's urgent medical needs, notice shall be made as soon as practicable before transfer or discharge. Notice shall explain the resident's right to appeal the proposed action under the facility's grievance procedure and shall include the address and phone number of the area ombudsman. The resident informed of this right may choose to relocate before the notice period ends. The facility shall make reasonable efforts to accommodate new residents without disrupting room assignments.
    5. Is encouraged and assisted, throughout the resident's period of stay, to exercise the individual's rights as a resident and as a citizen, and to this end may voice grievances and recommend changes in policies and services to facility staff or to outside representatives of the resident's choice, free from restraint, interference, coercion, discrimination, or reprisal.
    6. May manage the resident's personal financial affairs, or is given at least a quarterly accounting of financial transactions made on the resident's behalf should the facility accept the resident's written delegation of this responsibility to the facility for any period of time in conformance with State law.
    7. Is free from mental and physical abuse, and free from chemical and (except in emergencies) physical restraints except as authorized in writing by a physician for a specified and limited period of time, or when necessary to protect the resident from self-injury or injury to others. The facility shall inform residents of its restraint policy and appeal rights under the facility's grievance procedure. The policy must include the release of the restraints no less than every two hours for 10 minutes for exercise or repositioning. The resident has the right to be free from any physical restraints imposed or psychoactive drugs administered for purposes of discipline or convenience.
    8. Is assured confidential treatment of the resident's personal and medical records, and may approve or refuse their release to any individual outside the facility, except in case of the resident's transfer to another health care institution or as required by law or third-party payment contract.
    9. Is treated with consideration, respect, and full recognition of the resident's dignity and individuality, including privacy in treatment and in care for the resident's personal needs.
    10. Is not required to perform services for the facility that are not included for therapeutic purposes in the resident's plan of care.
    11. May associate and communicate privately with persons of the resident's choice, and send and receive the resident's personal mail unopened.
    12. May meet with, and participate in activities of, social, religious, and community groups at the resident's discretion.
    13. May retain and use the resident's personal clothing and possessions as space permits, unless to do so would infringe upon rights of other residents.
    14. If married, is assured privacy for visits by the resident's spouse; if both are residents of the facility, they are permitted to share a room.
    15. Shall have the right to choose the resident's own personal physician and the right to request a second opinion from a physician of the resident's choice if significant alternatives for care or treatment exist. If the resident requests information concerning care or treatment alternatives, the resident has the right to receive such information from the resident's doctor or the administrators as appropriate.
    16. To the extent permitted by law, has the right to refuse care or treatment, including the right to discharge himself or herself from the facility, and to be informed of the consequences of that action, and the nursing home shall be relieved of any further responsibility for that refusal.
    17. Is assured reasonable access to a telephone located in a quiet area where the resident can conduct a private conversation.
    18. Has the right to return to the first available bed in the nursing home the resident came from after hospitalization if the patient has not retained the resident's bed under subdivision (S) of this subdivision (2), provided the facility is able to meet the resident's medical needs and that the resident's welfare or that of other residents will not be adversely affected.
    19. Has the right upon payment of the resident's usual rate or, in the case of Medicaid residents, the resident's certified per diem compensation, to retain the resident's bed in the nursing home while absent from the facility due to hospitalization, provided such absence does not exceed 10 successive days.
    20. Is provided with professional assessment of pain and its management.
  3. The staff of the facility shall ensure that the residents and their families:
    1. Shall have the right to organize, maintain, and participate in either resident or family councils, or both. The facility shall provide space and, if requested, assistance for meetings. Council meetings shall be afforded privacy, with staff or visitors attending only at the council's invitation. The facility shall respond in writing to written requests from council meetings. Resident councils and family councils shall be encouraged to make recommendations regarding facility policies.
    2. Shall have the right to review current and past State and federal survey and inspection reports of the facility and, upon request, to receive a copy of any report from the facility. Copies of reports shall be available for review at any time at one station in the facility. The facility may charge a reasonable amount for more than one copy per resident.

      Added 1985, No. 153 (Adj. Sess.); amended 1989, No. 71 , § 1; 1999, No. 91 (Adj. Sess.), § 36; 2003, No. 162 (Adj. Sess.), § 14; 2015, No. 23 , § 49; 2021, No. 20 , § 364.

History

Reference in text. Section 205(j) of the Social Security Act, referred to in this section, is codified as 42 U.S.C. § 405.

Titles XVIII and XIX of the Social Security Act, referred to in subdivs. (2)(B) and (4)(D), are codified as 42 U.S.C. §§ 1395 et seq. and 1396 et seq., respectively.

Amendments--2021. Subdiv. (2): Substituted "a minimum" for "least" following "ensure that, at" in the intro. para.

Subdiv. (2)(B): Added "the" preceding "stay" in the first sentence.

Subdiv. (2)(D): Substituted "in which" for "where" following "cases" in the third sentence.

Subdiv. (2)(O): Amended generally.

Amendments--2015. Subdiv. (1): Deleted "reciprocal beneficiaries" following "next of kin" and substituted "20 C.F.R. part 404" for "20 CFR Part 404" in the second sentence.

Subdiv. (2)(N): Deleted "or in a reciprocal beneficiaries relationship" following "married" and "or reciprocal beneficiary" following "spouse".

Subdiv. (3): Deleted "; including a reciprocal beneficiary" following "families".

Amendments--2003 (Adj. Sess.). Section amended generally by removing "his or her" and using a substitute term where appropriate; added the right to notice of hospice treatment and right to professional pain assessment and management. Renumbered to conform with V.S.A. style.

Amendments--1999 (Adj. Sess.). Inserted "reciprocal beneficiaries" following "next of kin" in the second sentence of the introductory paragraph of the bill of rights; "or in a reciprocal beneficiaries relationship" following "if married", and "or reciprocal beneficiary" following "her spouse" in subdiv. (14); and "including a reciprocal beneficiary" following "their families" in subdivs. (20) and (21).

Amendments--1989. Section amended generally.

Prior law. 18 V.S.A. § 2101.

§ 7302. Adoption of grievance procedure.

  1. The State Board of Health shall require every nursing home to submit a plan for a resident grievance mechanism with respect to the obligations of the nursing home to residents using its facilities.  Every nursing home shall also submit a proposed notice to residents in accordance with section 7303 of this title.  The plan and notice must be consistent with the provisions of section 7301 of this title and approved by the State Board of Health prior to certification of compliance or issuance or renewal of a license.
  2. A resident grievance mechanism plan shall include a method by which each resident filing a grievance will be made aware of the State Long-Term Care Ombudsman and that the Ombudsman may be contacted as an alternative or in addition to the home's grievance mechanism. As used in this section, "Ombudsman" means the State Long-Term Care Ombudsman established in chapter 75 of this title pursuant to the Older Americans Act of 1965, as amended.
  3. The grievance mechanism within the facility will provide, at a minimum:
    1. designation of employees responsible for handling and assessing the validity of a grievance or recommendation;
    2. a method of investigating and assessing the validity of a grievance or recommendation;
    3. methods of resolving grievances; and
    4. methods of recording grievances and actions taken.
  4. Complaints that cannot be resolved by the grievance procedure within the facility shall be referred to the Ombudsman within seven working days.
  5. Within seven days of receipt of the complaint, the Ombudsman shall notify the complainant and the nursing home that an investigation has been initiated and that a written report will be made to the complainant and the nursing home within 14 days.

    Added 1985, No. 153 (Adj. Sess.); amended 1989, No. 71 , § 2; 1989, No. 219 (Adj. Sess.), § 9(a); 2005, No. 174 (Adj. Sess.), § 135; 2021, No. 20 , § 365.

History

Reference in text. The Older Americans Act of 1965, referred to in subsec. (b), is codified as 42 U.S.C. § 3001 et seq.

2013 In subsec. (b), deleted ", but not be limited to," following "include" in accordance with 2013, No. 5 , § 4.

Revision note - Substituted "section 7303 of this title" for "section 2103 of this title" in the second sentence and "section 7301 of this title" for "section 2101 of this title" in the third sentence of subsec. (a) in view of the recodification of this chapter by 1989, No. 219 (Adj. Sess.), § 10(d) and 1989, No. 148 (Adj. Sess.), § 2(e).

Amendments--2021. Subsec. (b): Amended generally.

Amendments--2005 (Adj. Sess.). Subsec. (b): Inserted "disabilities," preceding "aging" and substituted "independent living" for "disabilities" in the second sentence.

Amendments--1989 (Adj. Sess.). Subsec. (b): Substituted "department of aging and disabilities" for "department of rehabilitation and aging" in the second sentence.

Amendments--1989. Subsec. (a): Substituted "resident" for "patient" preceding "grievance" in the first sentence and "residents" for "patients" preceding "using its facilities" in that sentence and preceding "in accordance" in the second sentence.

Subsec. (b): Substituted "resident" for "patient" preceding "grievance mechanism" and preceding "filing" in the first sentence.

Prior law. 18 V.S.A. § 2102.

§ 7303. Notice to residents; posting.

  1. A summary of the obligations of the nursing home to residents using its facilities shall be written in clear language, in easily readable print, and posted conspicuously in a public place on each floor of the home. This notice shall also summarize the facility's grievance procedure and directions for contacting the Office of the State Long-Term Care Ombudsman. The directions for contacting the Office of the State Long-Term Care Ombudsman shall be written by the Department of Disabilities, Aging, and Independent Living; shall include a description of the Ombudsman program; and shall be underscored.
  2. A readable copy of this same notice shall be presented to each resident on admission together with an oral explanation of the rights, grievance procedure, and directions for contacting the Office of the State Long-Term Care Ombudsman.

    Added 1985, No. 153 (Adj. Sess.); amended 1989, No. 71 , § 3; 1989, No. 219 (Adj. Sess.), § 5; 2005, No. 174 (Adj. Sess.), § 136; 2013, No. 131 (Adj. Sess.), § 92, eff. May 20, 2014; 2021, No. 20 , § 366.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 18 V.S.A. § 2103(a) by 1989, No. 219 (Adj. Sess.), § 5, was incorporated in the text of this section.

Revision note. Substituted "residents" for "patients" in the section heading to conform the language to the text of the section as amended by 1989, No. 71 , § 3 and 1989, No. 219 (Adj. Sess.), § 5.

In subsec. (c), substituted "July 1, 1986" for "the effective date of this section" preceding "shall" and for "the effective date" preceding "receive".

Amendments--2021. Inserted "Office of the State Long-Term Care" preceding "Ombudsman" and deleted "program" following "Ombudsman" twice in subsec. (a) and once in subsec. (b).

Amendments--2013 (Adj. Sess.). Subsec. (c): Deleted.

Amendments--2005 (Adj. Sess.). Subsec. (a): Substituted "This" for "Such" preceding "notice" at the beginning of the second sentence; inserted "disabilities," preceding "aging" and substituted "independent living" for "disabilities" in the third sentence.

Amendments--1989 (Adj. Sess.). Subsec. (a): Substituted "residents" for "patients" preceding "using its facilities" in the first sentence and "department of aging and disabilities" for "board of health" preceding "shall include" in the third sentence.

Amendments--1989. Subsec. (c): Substituted "residents" for "patients" preceding "admitted".

Prior law. 18 V.S.A. § 2103.

§ 7304. Administrative penalty.

The Commissioner of Disabilities, Aging, and Independent Living may, after a hearing, impose an administrative penalty of not more than $1,000.00 against any facility or employee of a facility who violates a provision of this chapter.

Added 1985, No 153 (Adj. Sess.); amended 1989, No. 219 (Adj. Sess.), § 6; 2005, No. 174 (Adj. Sess.), § 137.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 18 V.S.A. § 2104 by 1989, No. 219 (Adj. Sess.), § 6, was incorporated in the text of this section.

Editor's note. Although 1989, No. 219 (Adj. Sess.), § 6, provided for amendment of this section by substituting "this subchapter" for "this chapter", that change was not made in view of the recodification of this section by 1989, No. 148 (Adj. Sess.), §§ 1, 2(e).

Amendments--2005 (Adj. Sess.). Inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities".

Amendments--1989 (Adj. Sess.). Substituted "commissioner of aging and disabilities" for "commissioner of health".

Prior law. 18 V.S.A. § 2104.

§ 7305. Readmission.

Notwithstanding any provision of this chapter to the contrary, a facility may petition the Commissioner of Disabilities, Aging, and Independent Living to deny readmission to the facility of any former resident returning from a period of hospitalization. A petition shall be made as soon as possible after the hospitalization of the resident and only shall be granted if in the judgment of the Commissioner, upon consultation with the State Long-Term Care Ombudsman, the resident has exhibited a nonremedial pattern of violent behavior that poses a danger to others.

Added 1985, No. 153 (Adj. Sess.); amended 1989, No. 71 , § 4; 1989, No. 219 (Adj. Sess.), § 7; 2005, No. 174 (Adj. Sess.), § 138; 2021, No. 20 , § 367.

History

Codification. Pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), the amendment to former 18 V.S.A. § 2105 by 1989, No. 219 (Adj. Sess.), § 7, was incorporated in the text of this section.

Editor's note. Although 1989, No. 219 (Adj. Sess.), § 7 provided for amendment of this section by substituting "this subchapter" for "this chapter" in the first sentence, that change was not made in view of the recodification of this section by 1989, No. 148 (Adj. Sess.), §§ 1, 2(e).

Amendments--2021. Inserted "to the contrary” following "chapter” in the first sentence; and, in the second sentence, inserted "State Long-Term Care” preceding "Ombudsman” and substituted "that” for "which” preceding "poses”.

Amendments--2005 (Adj. Sess.). Inserted "disabilities" preceding "aging" and substituted "independent living" for "disabilities" in the first sentence; substituted "A petition" for "Such petitions" and "the" for "any such" preceding "resident" in the second sentence.

Amendments--1989 (Adj. Sess.). Substituted "commissioner of aging and disabilities" for "commissioner of health" in the first sentence.

Amendments--1989. Substituted "resident" for "patient" preceding "returning" in the first sentence and in two places in the second sentence.

Prior law. 18 V.S.A. § 2105.

§ 7306. Resident's representative.

  1. Except as provided in subsection (b) of this section, the rights and obligations established under this chapter shall devolve to a resident's guardian, next of kin, sponsoring agency, or representative payee (except when the facility itself is a representative payee) if the resident:
    1. has been adjudicated incompetent;
    2. has been found by his or her physician to be medically incapable of understanding or exercising the rights granted under this chapter; or
    3. exhibits a communication barrier.
  2. Notwithstanding the provisions of subsection (a) of this section, consent for a do-not-resuscitate order or a clinician order for life-sustaining treatment shall be provided or withheld only by the resident, by the resident's guardian or agent, or by a surrogate designated pursuant to 18 V.S.A. chapter 231, subchapter 2.
    1. A resident's representative identified in subsections (a) and (b) of this section shall make decisions for the resident by attempting to determine what the resident would have wanted under the circumstances. In making the determination, the resident's representative shall consider the following: (c) (1)  A resident's representative identified in subsections (a) and (b) of this section shall make decisions for the resident by attempting to determine what the resident would have wanted under the circumstances. In making the determination, the resident's representative shall consider the following:
      1. the resident's specific instructions or wishes as expressed to a spouse, adult child, parent, adult sibling, adult grandchild, clergy person, health care provider, or any other adult who has exhibited specific care or concern for the resident; and
      2. the representative's knowledge of the resident's personal preferences, values, or religious or moral beliefs.
    2. If the resident's representative cannot determine what the resident would have wanted under the circumstances, the representative shall make a determination through an assessment of the resident's best interests. When making a decision for the resident on this basis, the representative shall not authorize the provision or withholding of health care on the basis of the resident's economic status or a preexisting, long-term mental or physical disability.
    3. When making a determination under this section, representatives shall not consider their own interests, wishes, values, or beliefs.
  3. Notwithstanding the provisions of subsection (a) of this section, the facility shall make every reasonable effort to communicate the rights and obligations established under this chapter directly to the resident.

    Added 1985, No. 153 (Adj. Sess.); amended 1989, No. 71 , § 5; 1999, No. 91 (Adj. Sess.), § 37; 2013, No. 131 (Adj. Sess.), § 93, eff. May 20, 2014; 2015, No. 23 , § 50; 2015, No. 136 (Adj. Sess.), § 2, eff. Jan. 1, 2018.

History

Amendments--2015 (Adj. Sess.) Section amended generally.

Amendments--2015. Subsec. (a): Deleted "reciprocal beneficiary" following "resident's".

Amendments--2013 (Adj. Sess.). Subsec. (a): Made a minor stylistic change.

Amendments--1999 (Adj. Sess.). Subsec. (a): Inserted "reciprocal beneficiary" following "to a resident's" in the introductory paragraph.

Amendments--1989. Substituted "resident's" for "patient's" preceding "representative" in the section heading.

Subsec. (a): Substituted "resident's" for "patient's" preceding "guardian" and "resident" for "patient" at the end of the introductory paragraph.

Subsec. (b): Substituted "resident" for "patient" following "directly to the".

Prior law. 18 V.S.A. § 2106.

CHAPTER 75. STATE LONG-TERM CARE OMBUDSMAN

Sec.

§ 7501. Definitions.

As used in this chapter:

  1. "Long-term care" means services and supports received by an individual in a long-term care facility or provided to an individual through the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration.
  2. "Long-term care facility" means a residential care home, an assisted living residence or nursing home as defined by section 7102 of this title, or any other similar adult care home that is licensed or required to be licensed pursuant to chapter 71 of this title.
  3. "Office" means the Office of the State Long-Term Care Ombudsman.
  4. "Older person" means an individual who is 60 years of age or older.
  5. "Representatives of the Office of the State Long-Term Care Ombudsman" or "representatives of the Office" means the employees or volunteers designated by the State Long-Term Care Ombudsman to carry out the duties of the Office, regardless of whether supervision is provided by the Ombudsman, his or her designee, or an agency hosting a local Ombudsman entity designated by the Ombudsman.
  6. "Resident" means an older person or an individual with disabilities who is 18 years of age or older who resides in a long-term care facility or receives long-term care through the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration.
  7. "Resident representative" means any of the following:
    1. an individual chosen by the resident to act on his or her behalf in order to support the resident with decision making; accessing the resident's own medical, social, or other personal information; managing financial matters; receiving notifications; or a combination of these;
    2. a person authorized by State or federal law, including an agent under a power of attorney or advance directive, a representative payee, or another fiduciary, to act on the resident's behalf to support the resident with decision making; accessing the resident's own medical, social, or other personal information; managing financial matters; receiving notifications; or a combination of these;
    3. legal representative, as used in Section 712 of the federal Older Americans Act, 42 U.S.C. § 3058g ; or
    4. the resident's court-appointed guardian or conservator.
  8. "State Long-Term Care Ombudsman" or "Ombudsman" means the individual selected from among individuals with expertise and experience in the fields of long-term care and advocacy who heads the Office of the State Long-Term Care Ombudsman and is responsible personally, or through representatives of the Office, to fulfill the functions, responsibilities, and duties set forth in 45 C.F.R. §§ 1324.13 and 1324.19.
  9. "Willful interference" means an individual's action taken or failure to act in an intentional attempt to prevent, interfere with, or impede the Ombudsman or a representative of the Office from performing any of his or her functions, responsibilities, or duties.

    Added 1989, No. 251 (Adj. Sess.), § 1; amended 2005, No. 56 , § 3, eff. June 13, 2005; 2013, No. 131 (Adj. Sess.), § 94, eff. May 20, 2014; 2017, No. 23 , § 1.

History

Reference in text. The Older Americans Act, referred to in subdiv. (7)(C), is codified as 42 U.S.C. § 3001 et seq.

The Medicaid Section 1115 waiver, referred to in subdiv. (1), is authorized pursuant to Section 1115 of the Social Security Act, which is codified as 42 U.S.C. § 1315.

Codification. This section was originally enacted as 33 V.S.A. § 3751 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

2013 In the introductory sentence, substituted "As used in" for "For the purposes of" preceding "this chapter" to conform to V.S.A. style.

Amendments--2017. Section amended generally.

Amendments--2013 (Adj. Sess.). Subdiv. (1): Inserted "Section" following "Medicaid".

Amendments--2005 Section amended generally.

§ 7502. Office of the Long-Term Care Ombudsman established.

The Office of the Long-Term Care Ombudsman is established in the Department of Disabilities, Aging, and Independent Living to represent the interests of older persons and persons with disabilities under 60 years of age receiving long-term care in accordance with the provisions of this chapter and the Older Americans Act. Subject to the provisions of 42 U.S.C. § 3058g , the Department may operate the Office and carry out the program directly or by contract or other arrangement with any public agency or nonprofit private organization. The Office shall be headed by the State Long-Term Care Ombudsman.

Added 1989, No. 251 (Adj. Sess.), § 1; amended 1993, No. 132 (Adj. Sess.), § 1; 1995, No. 174 (Adj. Sess.), § 4; 2005, No. 56 , § 3, eff. June 13, 2005; 2005, No. 174 (Adj. Sess.), § 139; 2017, No. 23 , § 1.

History

Reference in text. The Older Americans Act, referred to in this section, is codified as 42 U.S.C. § 3001 et seq.

42 U.S.C. § 3058g, referred to in this section, relates to the State Long-Term Care Ombudsman program.

Codification. This section was originally enacted as 33 V.S.A. § 3752 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2017. Section amended generally.

Amendments--2005 (Adj. Sess.). Inserted "disabilities," preceding "aging" in two places and deleted "division of disabilities and aging services" following "independent living".

Amendments--2005 Substituted "independent living" for "disabilities" preceding "to represent", and "receiving" for "residing in" preceding "long-term care" and deleted "facilities" thereafter in the first sentence, and substituted "aging and independent living, division of disabilities and aging services" for "mental health and mental retardation" in the second sentence.

Amendments--1995 (Adj. Sess.) Inserted "and persons with disabilities under the age of 60" following "older persons" in the first sentence and added the second sentence.

Amendments--1993 (Adj. Sess.). Rewrote the second sentence and added the third sentence.

§ 7503. Responsibilities of the Office.

The Office shall:

  1. investigate and resolve complaints on behalf of individuals receiving long-term care;
  2. analyze and monitor the development and implementation of federal, State, and local laws and of rules, regulations, and policies relating to long-term care, long-term care facilities, or providers of long-term care and recommend changes it deems appropriate;
  3. provide information to the public, agencies, legislators, and others, as it deems necessary, regarding problems and concerns of individuals receiving long-term care, including recommendations related to such problems and concerns;
  4. develop and establish policies and procedures for involvement by volunteers in the work of the Office;
  5. promote the development of citizen and consumer organizations in the work of the Office and the quality of life of individuals receiving long-term care;
  6. establish policies and procedures for protecting the confidentiality of its clients as required by the Older Americans Act;
  7. establish qualifications and training for the Ombudsman and representatives of the Office, monitor their performance, and establish procedures for certifying staff and volunteers;
  8. train persons and organizations in advocating for the interests of individuals receiving long-term care;
  9. develop and implement a uniform reporting system to collect and analyze information relating to complaints by individuals receiving long-term care and conditions in long-term care facilities;
  10. submit to the General Assembly and the Governor on or before January 15 of each year a report on complaints by individuals receiving long-term care, conditions in long-term care facilities, and the quality of long-term care and recommendations to address identified problems; and
  11. perform such other activities as the Office deems necessary on behalf of individuals receiving long-term care.

    Added 1989, No. 251 (Adj. Sess.), § 1; amended 2005, No. 56 , § 3, eff. June 13, 2005; 2017, No. 23 , § 1; 2021, No. 20 , § 368.

History

Reference in text. The Older Americans Act, referred to in subdiv. (6), is codified as 42 U.S.C. § 3001 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3753 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2021. Subdiv. (2): Inserted "rules," preceding "regulations".

Amendments--2017. Subdiv. (6): Substituted "policies and" for "by rule" preceding "procedures".

Subdiv. (7): Deleted "by rule" preceding "qualifications" and "procedures"; substituted "the Ombudsman and representatives of the Office" for "ombudsman" preceding "monitor" and "volunteers" for "volunteer ombudsman" following "staff and".

Amendments--2005 Section amended generally.

§ 7504. Authority of the Ombudsman and representatives of the Office.

    1. The Ombudsman, as head of the Office, shall have the responsibility for leadership and management of the Office in coordination with the Department of Disabilities, Aging, and Independent Living and, as applicable, with any other agency carrying out the Ombudsman program. (a) (1)  The Ombudsman, as head of the Office, shall have the responsibility for leadership and management of the Office in coordination with the Department of Disabilities, Aging, and Independent Living and, as applicable, with any other agency carrying out the Ombudsman program.
    2. In addition to the functions set forth in 45 C.F.R. § 1324.13, the Ombudsman shall, personally or through representatives of the Office:
      1. analyze, comment on, and monitor the development and implementation of federal, State, and local laws, rules, regulations, and other governmental policies and actions pertaining to the health, safety, welfare, and rights of residents with respect to the adequacy of long-term care facilities and long-term care in the State;
      2. recommend any changes in such laws, rules, regulations, policies, and actions that the Office deems appropriate;
      3. facilitate public comment on the laws, rules, regulations, policies, and actions;
      4. provide leadership for the Office's statewide systemic advocacy efforts on behalf of residents, including coordinating systemic advocacy efforts implemented by representatives of the Office; and
      5. provide information to public and private agencies, the General Assembly, the media, and others regarding the problems and concerns of residents and the Ombudsman's recommendations regarding the problems and concerns.
    3. In addition to the functions set forth in 45 C.F.R. § 1324.13 and subdivision (2) of this subsection, the Ombudsman personally shall:
      1. establish or recommend policies, procedures, and standards for the Ombudsman program;
      2. require representatives of the Office to fulfill the duties set forth in 45 C.F.R. § 1324.19 in accordance with Ombudsman program policies and procedures;
      3. refuse, suspend, or remove the designation of a representative of the Office or a local Ombudsman entity, or both, whenever the Ombudsman determines that the representative's or entity's policies, procedures, or practices are in conflict with the laws, policies, or procedures governing the Ombudsman program;
      4. establish training procedures for certification and continuing education for representatives of the Office; and
      5. investigate allegations of misconduct by representatives of the Office of the State Long-Term Care Ombudsman in the performance of Ombudsman program functions, responsibilities, and duties.
    4. Notwithstanding any provision of law to the contrary, the actions of the State Long-Term Care Ombudsman and representatives of the Office in carrying out the functions described in this subsection shall not be construed to constitute lobbying as defined in 2 V.S.A. § 261 .
  1. In fulfilling the responsibilities of the Office, the State Long-Term Care Ombudsman and representatives of the Office of the State Long-Term Care Ombudsman are authorized to:
    1. Hire or contract with persons or organizations to fulfill the purposes of this chapter.
    2. Communicate and visit with any individual receiving long-term care, provided that the Ombudsman or the representative of the Office shall obtain permission from the resident or the resident representative to enter the resident's home. Long-term care facilities shall provide the Ombudsman or the representative of the Office access to their facilities, and long-term care providers shall ensure the Ombudsman and representatives of the Office have access to the individuals for whom they provide long-term care, as well as the name of and contact information for the resident representative, if any, as needed to perform the Ombudsman's functions and responsibilities or the duties of the representatives of the Office.
    3. Have appropriate access to review the medical and social records of an individual receiving long-term care as required by 42 U.S.C. § 3058g (b), as the Health Insurance Portability and Accountability Act of 1996 Privacy Rule, 45 C.F.R. Part 160 and 45 C.F.R. Part 164, subparts A and E, does not preclude release by covered entities of residents' private health information or other resident-identifying information to the Ombudsman program, including residents' medical, social, or other records; a list of resident names and room numbers; or information collected in the course of a State or federal survey or inspection process.
    4. Pursue administrative, judicial, or other remedies on behalf of individuals receiving long-term care, including access orders from a Superior judge when access under subdivision (2) or (3) of this section has been unreasonably denied and all other reasonable attempts to gain access have been pursued and have failed.
    5. Adopt rules necessary to carry out the provisions of this chapter and those of the Older Americans Act relating to the Ombudsman program.
    6. Take such further actions as are necessary in order to fulfill the purposes of this chapter.

      Added 1989, No. 251 (Adj. Sess.), § 1; amended 2005, No. 56 , § 3, eff. June 13, 2005; 2017, No. 23 , § 1.

History

Reference in text. 42 U.S.C. § 3058g(b), referred to in subdiv. (3), concerns the State Long-Term Care Ombudsman program.

The Older Americans Act, referred to in subdiv. (5), is codified as 42 U.S.C. § 3001 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3754 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

2014. Deleted "District or" preceding "Superior judge" in subdiv. (4) in accordance with 2009, No. 154 (Adj. Sess.), § 236.

Amendments--2017. Section amended generally.

Amendments--2005 Rewrote subdivs. (2) and (3), and substituted "individuals receiving" for "residents of" preceding "long-term care" and deleted "facilities" thereafter, and added "and all other reasonable attempts to gain access have been pursued and have failed" in subdiv. (4).

§ 7505. Cooperation of State agencies.

  1. All State agencies shall comply with reasonable requests of the Ombudsman for information and assistance and shall comply with the requirements for State agencies set forth in 45 C.F.R. § 1324.15.
  2. The Secretary of Human Services may adopt rules necessary to ensure that departments within the Agency of Human Services cooperate with the Ombudsman's office. Cooperation shall include providing information regarding conditions and care in long-term care facilities.

    Added 1989, No. 251 (Adj. Sess.), § 1; amended 2017, No. 23 , § 1.

History

Codification. This section was originally enacted as 33 V.S.A. § 3755 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2017. Subsec. (a): Deleted "State" preceding "Ombudsman" and inserted "and shall comply with the requirements for State agencies set forth in 45 C.F.R. § 1324.15" following "assistance".

Subsec. (b): Inserted "Ombudsman's" preceding "office".

Cross References

Cross references. Procedure for adoption of administrative rules, see 3 V.S.A. chapter 25.

§ 7506. Disclosure of information.

  1. In determining whether and to what extent to disclose files, records, and other information maintained by the Ombudsman program, the Ombudsman shall:
    1. have the sole authority to make or delegate determinations concerning the disclosure of files, records, and other information maintained by the Ombudsman program, and shall comply with Section 712(d) of the federal Older Americans Act, 42 U.S.C. § 3058g (d), in responding to requests for disclosure of files, records, and other information, regardless of the format of the file, record, or other information; the source of the request; or the sources of funding for the Ombudsman program;
    2. develop and adhere to criteria to guide the Ombudsman's discretion in determining whether to disclose the files, records, or other information; and
    3. develop and adhere to a process for appropriate disclosure of information maintained by the Ombudsman's office.
  2. Except as otherwise required by law, the Ombudsman program shall not disclose identifying information relating to any resident on whom the Ombudsman program maintains files, records, or information unless:
    1. the resident or resident representative communicates informed consent to the disclosure and consent is provided in writing or through the use of auxiliary aids and services;
    2. the resident or resident representative communicates informed consent orally, visually, or through the use of auxiliary aids and services and the Ombudsman or a representative of the Office documents the consent contemporaneously in accordance with established procedures; or
    3. disclosure is required by court order.
  3. The Ombudsman program shall not disclose identifying information relating to any complainant on whom the Ombudsman program maintains files, records, or information unless:
    1. the complainant communicates informed consent to the disclosure and consent is provided in writing or through the use of auxiliary aids and services;
    2. the complainant communicates informed consent orally, visually, or through the use of auxiliary aids and services and the Ombudsman or a representative of the Office documents the consent contemporaneously in accordance with established procedures; or
    3. disclosure is required by court order.

      Added 1989, No. 251 (Adj. Sess.), § 1; amended 2017, No. 23 , § 1.

History

Codification. This section was originally enacted as 33 V.S.A. § 3756 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2017. Rewrote the section.

§ 7507. Immunity.

No civil liability shall attach to the Ombudsman or any representative of the Office for good faith performance of the functions, responsibilities, or duties imposed by this chapter.

Added 1989, No. 251 (Adj. Sess.), § 1; amended 2017, No. 23 , § 1.

History

Codification. This section was originally enacted as 33 V.S.A. § 3757 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2017. Deleted "State" preceding "Ombudsman"; substituted "representative of the Office" for "ombudsman" following "or any"; and inserted "functions, responsibilities, or" preceding "duties".

§ 7508. Interference and retaliation.

  1. A person who engages in willful interference as defined in this chapter shall be imprisoned not more than one year or fined not more than $5,000.00, or both.
  2. A person who takes discriminatory, disciplinary, or retaliatory action against an employee, resident, or volunteer of a long-term care facility; an entity that provides long-term care through the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration; or an agency for any communication made, or information disclosed, to aid the Ombudsman's office in carrying out its functions, duties, and responsibilities, unless the original communication or disclosure was done maliciously or without good faith, shall be imprisoned not more than one year or fined not more than $5,000.00, or both. An employee, resident, or volunteer of a long-term care facility, an entity that provides long-term care through the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration, or an agency may seek damages in Superior Court against a person who takes such action prohibited by this subsection.

    Added 1989, No. 251 (Adj. Sess.), § 1; amended 2013, No. 131 (Adj. Sess.), § 95; 2017, No. 23 , § 1.

History

Codification. This section was originally enacted as 33 V.S.A. § 3758 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2017. Section amended generally.

Amendments--2013 (Adj. Sess.). Subsec. (b): Made minor stylistic changes.

§ 7509. Conflict of interest.

  1. The Department of Disabilities, Aging, and Independent Living and the Ombudsman shall identify organizational conflicts of interest that may impact the effectiveness and credibility of the Ombudsman's office and shall remove or remedy any such conflicts. Organizational conflicts include placement of the Ombudsman's office, or requiring that the Ombudsman or a representative of the Office perform conflicting activities, in an organization that:
    1. is responsible for licensing, surveying, or certifying long-term care facilities;
    2. is an association or an affiliate of an association of long-term care facilities or of any other entity that provides long-term care through the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration;
    3. has any ownership or investment interest in, or receives grants or donations from, a long-term care facility;
    4. has any officer or governing board member with any ownership, investment, or employment interest in a long-term care facility or an entity that provides long-term care through the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration;
    5. provides long-term care to residents;
    6. provides long-term care coordination or case management for residents;
    7. sets reimbursement rates for long-term care facilities;
    8. provides adult protective services;
    9. is responsible for eligibility determinations for patients regarding Medicaid or other public benefits;
    10. conducts preadmission screening for long-term care facility placements;
    11. makes decisions regarding admission or discharge of individuals to or from long-term care facilities; or
    12. provides guardianship, conservatorship, or other fiduciary or surrogate decision-making services for residents.
  2. To avoid individual conflicts of interest that may impact the effectiveness and credibility of the work of the Ombudsman's office, the Ombudsman shall develop and implement policies and procedures to ensure that neither the Ombudsman nor representatives of the Office are required or permitted to hold positions or perform duties that would constitute an individual conflict of interest. Individual conflicts of interest for an Ombudsman, representatives of the Office, and members of their immediate families include:
    1. direct involvement in the licensing or certification of a long-term care facility;
    2. ownership, operational, or investment interest in an existing or proposed long-term care facility or other entity that provides long-term care through the Choices for Care program contained within Vermont's Global Commitment to Health Section 1115 demonstration;
    3. an individual's employment by, or participation in the management of, a long-term care facility in this State or an individual's employment by the owner or operator of any long-term care facility in this State;
    4. receipt of, or the right to receive, directly or indirectly, remuneration under a compensation arrangement with an owner or operator of a long-term care facility;
    5. acceptance of gifts or gratuities of significant value from a long-term care facility or its management, or from a resident or resident representative of a long-term care facility in which the Ombudsman or a representative of the Office provides services, except if the individual has a personal relationship with a resident or resident representative separate from the individual's role as the Ombudsman or representative of the Office;
    6. acceptance of money or any other consideration from anyone other than the Ombudsman's office, or an entity approved by the Ombudsman, for the performance of an act in the regular course of duties of the Ombudsman or of representatives of the Office, without the Ombudsman's approval;
    7. serving as a guardian, conservator, or in another fiduciary or surrogate decision-making capacity for a resident of a long-term care facility in which the Ombudsman or a representative of the Office provides services; and
    8. providing services to residents of a long-term care facility in which an immediate family member resides.
  3. The Ombudsman, consistent with the requirements of the Older Americans Act, shall be able to speak on behalf of the interest of individuals receiving long-term care and to carry out all duties prescribed in this chapter without being made subject to any disciplinary or retaliatory personnel or other action as a consequence of so doing. The Commissioner of Disabilities, Aging, and Independent Living shall establish a committee of not fewer than five persons, who represent the interests of individuals receiving long-term care and who are not State employees, for the purpose of ensuring that the Ombudsman program is free from conflicts of interest. The Commissioner shall solicit from this committee its assessment of the Ombudsman program's capacity to operate in accordance with this section and shall submit that assessment as an appendix to the report required under subdivision 7503(10) of this title. The Department, in consultation with this committee, shall establish a process for periodic review and identification of conflicts within the Ombudsman program.

    Added 1989, No. 251 (Adj. Sess.), § 1; amended 2005, No. 56 , § 3, eff. June 13, 2005; 2017, No. 23 , § 1; 2017, No. 113 (Adj. Sess.), § 195.

History

Reference in text. The Older Americans Act, referred to in subsec. (c), is codified as 42 U.S.C. § 3001 et seq.

Codification. This section was originally enacted as 33 V.S.A. § 3759 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e) in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2017 (Adj. Sess.). Subsec. (c): Substituted "not" for "no" preceding "fewer than five" in the second sentence and "section" for "subsection" following "in accordance with this" in the third sentence.

Amendments--2017. Rewrote the section.

Amendments--2005 Subsec. (a): Inserted "or provider of long-term care" following "long-term care facility".

Subsec. (b): Substituted "interest of individuals receiving long-term care and" for "interest of residents of long-term care facilities and" in the first sentence, substituted "independent living" for "disabilities" preceding "shall establish" and "individuals receiving" for "residents of" preceding "long-term care" and deleted "facilities" thereafter in the second sentence, and substituted "subdivision 7503(10)" for "section 7503(10)" in the third sentence.

§ 7510. Legal assistance.

    1. A contract for Ombudsman services shall require the Ombudsman program to secure adequate legal counsel that is available, has competencies relevant to the legal needs of the Ombudsman program and of residents, and is without conflict of interest, in order to: (a) (1)  A contract for Ombudsman services shall require the Ombudsman program to secure adequate legal counsel that is available, has competencies relevant to the legal needs of the Ombudsman program and of residents, and is without conflict of interest, in order to:
      1. provide consultation and representation as needed to enable the Ombudsman program to protect the health, safety, welfare, and rights of residents; and
      2. provide consultation or representation, or both, as needed to assist the Ombudsman and representatives of the Office in the performance of their official functions, responsibilities, and duties, including complaint resolution and systems advocacy.
    2. Notwithstanding the provisions of subdivision (1) of this subsection, if the Ombudsman or representatives of the Office are State employees, the Office of the Attorney General shall provide legal representation and advice to the Ombudsman and the representatives of the Office.
  1. Legal representation of the Ombudsman program by the Ombudsman or a representative of the Office who is a licensed attorney shall not by itself constitute adequate legal counsel.

    Added 1989, No. 251 (Adj. Sess.), § 1; amended 1993, No. 132 (Adj. Sess.), § 2; 2017, No. 23 , § 1.

History

Codification. This section was originally enacted as 33 V.S.A. § 3760 and was redesignated pursuant to 1989, No. 148 (Adj. Sess.), § 2(e), in order to incorporate the provision in the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), § 1.

Amendments--2017. Section amended generally.

Amendments--1993 (Adj. Sess.). Added the first sentence and added "however, if the state ombudsman or regional ombudsmen are state employees" preceding "the office" and "regional" following "ombudsman and the" in the second sentence.

CHAPTER 76. CHOICES FOR CARE

Sec.

History

Effective date and applicability of 2018 (Sp. Sess.) enactment. 2018, No. 11 (Sp. Sess.), § G.100(a) provides that this chapter, as enacted by Sec. E.308 of that act, "shall take effect on passage, provided that if the date of passage of [the] act is after June 30, 2018, then notwithstanding 1 V.S.A. § 214 ... [Sec. E.308] shall take effect on passage and shall apply retroactively to June 30, 2018." 2018, No. 11 (Sp. Sess.) took effect without the Governor's signature on July 1, 2018.

§ 7601. Definitions.

As used in this chapter:

  1. "Commissioner" means the Commissioner of Disabilities, Aging, and Independent Living.
  2. "Department" means the Department of Disabilities, Aging, and Independent Living.
  3. "Savings" means the difference remaining at the conclusion of each fiscal year between the amount of funds appropriated for Choices for Care and the sum of expended and obligated funds, less an amount equal to one percent of that fiscal year's total Choices for Care expenditure. The one percent shall function as a reserve to avoid implementing a High Needs wait list due to unplanned Choices for Care budget pressures throughout the fiscal year.

    Added 2018, No. 11 (Sp. Sess.), § E.308.

§ 7602. Calculating and allocating savings.

    1. The Department shall calculate savings and investments in Choices for Care and report the amount of savings to the Joint Fiscal Committee, the House Committees on Appropriations and on Human Services, and the Senate Committees on Appropriations and on Health and Welfare on or before September 15 of each year. The Department shall not reduce the base funding needed in a subsequent fiscal year prior to calculating savings for the current fiscal year. (a) (1)  The Department shall calculate savings and investments in Choices for Care and report the amount of savings to the Joint Fiscal Committee, the House Committees on Appropriations and on Human Services, and the Senate Committees on Appropriations and on Health and Welfare on or before September 15 of each year. The Department shall not reduce the base funding needed in a subsequent fiscal year prior to calculating savings for the current fiscal year.
    2. After reporting the savings in accordance with subdivision (1) of this subsection, the Commissioner shall determine how to allocate available Choices for Care program savings in accordance with this section.
  1. Savings shall be one-time investments or shall be used in ways that are sustainable into the future. Use of savings shall be based on the assessed needs of Vermonters as identified by the Department and its stakeholders. Priority for the use of any identified savings after the needs of all individuals meeting the terms and conditions of the waiver have been met shall be given to home- and community-based services. As used in this chapter, "home- and community-based services" includes all home-based services and Enhanced Residential Care.
  2. Savings may be used to:
    1. increase Choices for Care home- and community-based provider rates;
    2. increase Choices for Care self-directed service budgets;
    3. expand Choices for Care capacity to accommodate additional enrollees;
    4. expand Choices for Care home- and community-based service options;
    5. address Choices for Care quality improvement outcomes; and
    6. fund investments to serve older Vermonters and Vermonters with disabilities outside Choices for Care, understanding non-Medicaid services are not eligible for a federal match.
  3. Savings shall not be used to:
    1. increase nursing home rates already addressed pursuant to section 905 of this title; or
    2. pay for budget pressures related to the Collective Bargaining Agreement for independent direct support workers.

      Added 2018, No. 11 (Sp. Sess.), § E.308; amended 2021, No. 20 , § 369.

History

Amendments--2021. Subdiv. (a)(1): Amended generally.

CHAPTER 77. VERMONT ADAPTIVE EQUIPMENT REVOLVING FUND

Sec.

§§ 7701-7708. Repealed. 2007, No. 65, § 404(c), eff. June 7, 2007.

History

Former §§ 7701-7708. Former §§ 7701-7708, relating to the Vermont Adaptive Equipment Revolving Fund, were derived from 1989, No. 206 (Adj. Sess.), § 1.

CHAPTER 78. INDIVIDUALS WITH TRAUMATIC BRAIN INJURY (TBI)

Sec.

History

Legislative intent. 2007, No. 153 (Adj. Sess.), § 9 provides: "It is the intent of the general assembly that the Vermont traumatic brain injury fund created in 33 V.S.A. § 7801 shall be used for the benefit of all Vermonters suffering from traumatic brain injuries, including residents who have served in the armed forces of the United States in Operation Iraqi Freedom and Operation Enduring Freedom."

§ 7801. Vermont Traumatic Brain Injury Fund.

  1. The Vermont Traumatic Brain Injury Fund is established in the Office of the State Treasurer as a special fund to be a source of financing for services for individuals with TBI and for programs established by or through contracts with the Agency of Human Services for the treatment of traumatic brain injuries.
  2. Into the Fund shall be deposited proceeds from grants, donations, contributions, taxes, and any other sources of revenue as may be provided by statute, rule, or act of the General Assembly.
  3. The Fund shall be administered pursuant to 32 V.S.A. chapter 7, subchapter 5, except that interest earned on the Fund and any remaining balance shall be retained in the Fund.
  4. All monies received by or generated to the Fund shall be used only as allowed by appropriation of the General Assembly for the administration and delivery of services for individuals with TBI and for programs for the treatment of brain injuries established by or through contracts with the Agency of Human Services.
  5. The Agency of Human Services shall develop a policy for disbursement of monies from the Fund created in subsection (a) of this section and submit the policy to the Joint Fiscal Committee for approval at its September 2008 meeting.

    Added 2007, No. 153 (Adj. Sess.), § 9a.

CHAPTER 79. ADVISORY COUNCIL ON SPINAL CORD AND HEAD INJURIES

Sec.

§§ 7901-7903. Repealed. 1991, No. 149 (Adj. Sess.), § 2, eff. July 1, 1996.

History

Former §§ 7901-7903. Former §§ 7901-7903, relating to the Advisory Council on Spinal Cord and Head Injuries, was derived from 1991, No. 149 (Adj. Sess.), § 1.

CHAPTER 80. VERMONT ACHIEVING A BETTER LIFE EXPERIENCE (ABLE) SAVINGS PROGRAM

Sec.

History

Legislative purpose. 2015, No. 51 , § C.6, effective June 3, 2015, provides "The purpose of this act is:

"(1) to encourage and assist individuals and families in saving private funds for the purpose of supporting individuals with disabilities in maintaining health, independence, and quality of life.

"(2) to provide secure funding for disability-related expenses on behalf of designated beneficiaries with disabilities that will supplement, but not supplant, benefits provided through private insurance, the Medicaid program under Title XIX of the Social Security Act, the supplemental security income program under Title XVI of such Act, the beneficiary's employment, and other sources."

§ 8001. Program established.

  1. The State Treasurer or designee shall have the authority to establish the Vermont Achieving a Better Life Experience (ABLE) Savings Program consistent with the provisions of this chapter under which a person may make contributions for a taxable year, for the benefit of an individual who is an eligible individual for such taxable year, to an ABLE account that is established for the purpose of meeting the qualified disability expenses of the designated beneficiary of the account, and that:
    1. limits a designated beneficiary to one ABLE account for purposes of this section;
    2. allows for the establishment of an ABLE account only for a designated beneficiary who is a resident of Vermont or a resident of a contracting State; and
    3. meets the other requirements of this chapter.
    1. The Treasurer or designee may solicit proposals from financial organizations to implement the Program as account depositories and managers. (b) (1)  The Treasurer or designee may solicit proposals from financial organizations to implement the Program as account depositories and managers.
    2. A financial organization that submits a proposal shall describe the investment instruments that will be held in accounts.
    3. The Treasurer shall select from among the applicants one or more financial organizations that demonstrate the most advantageous combination, both to potential Program participants and this State, of the following criteria:
      1. the financial stability and integrity of the financial organization;
      2. the safety of the investment instrument offered;
      3. the ability of the financial organization to satisfy recordkeeping and reporting requirements;
      4. the financial organization's plan for promoting the Program and the investment the organization is willing to make to promote the Program;
      5. the fees, if any, proposed to be charged to the account owners;
      6. the minimum initial deposit and minimum contributions that the financial organization will require;
      7. the ability of the financial organization to accept electronic withdrawals, including payroll deduction plans; and
      8. other benefits to the State or its residents included in the proposal, including fees payable to the State to cover expenses of operation of the Program.
  2. The Treasurer or designee shall have the authority to implement the Program in cooperation with one or more states or other partners in the manner he or she determines is in the best interests of the State and designated beneficiaries.
  3. The Treasurer or designee shall have the authority to adopt rules, policies, and procedures necessary to implement the provisions of this chapter and comply with applicable federal law.

    Added 2015, No. 51 , § C.7, eff. June 3, 2015; amended 2015, No. 157 (Adj. Sess.), § F.2, eff. June 2, 2016.

History

Amendments--2015 (Adj. Sess.). Added new subsec. (c) and redesignated former subsec. (c) as present subsec. (d).

§ 8002. Definitions.

As used in this chapter:

  1. "ABLE account" means an account established by an eligible individual, owned by the eligible individual, and maintained under the Vermont ABLE Savings Program.
  2. "Designated beneficiary" means the eligible individual who establishes an ABLE account under this chapter and is the owner of the account.
  3. "Disability certification" means a certification to the satisfaction of the Secretary by the individual or the parent or guardian of the individual that:
    1. certifies that:
      1. the individual has a medically determinable physical or mental impairment that results in marked and severe functional limitations and that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months, or the individual is blind within the meaning of Section 1614(a)(2) of the Social Security Act; and
      2. such blindness or disability occurred before the individual attained 26 years of age; and
    2. includes a copy of the individual's diagnosis relating to the individual's relevant impairment or impairments, signed by a physician meeting the criteria of Section 1861(r)(1) of the Social Security Act.
  4. "Eligible individual" means:
    1. a person who during a taxable year is entitled to benefits based on blindness or disability under Title II or XVI of the Social Security Act, and such blindness or disability occurred before the date on which the individual attained 26 years of age; or
    2. a person for whom a disability certification is filed with the Secretary for the taxable year.
  5. "Financial organization" means an organization that is authorized to do business in this State and that is:
    1. licensed or chartered by the Department of Financial Regulation;
    2. chartered by an agency of the federal government; or
    3. subject to the jurisdiction and regulation of the federal Securities and Exchange Commission.
  6. [Repealed.]
  7. "Qualified disability expense" means an expense related to the eligible individual's blindness or disability that is made for the benefit of an eligible individual who is the designated beneficiary, including the following expenses: education, housing, transportation, employment training and support, assistive technology and personal support services, health, prevention and wellness, financial management and administrative services, legal fees, expenses for oversight and monitoring, funeral and burial expenses, and other expenses that are approved by the Secretary by regulation and consistent with the purposes of this section.
  8. "Secretary" means the Secretary of the U.S. Department of the Treasury.

    Added 2015, No. 51 , § C.7, eff. June 3, 2015; amended 2021, No. 20 , § 370.

History

Reference in text. Section 1614(a)(2) of the Social Security Act, referred to in subdiv. (3)(A)(i), is codified as 42 U.S.C. § 1382c(a)(2).

Section 1861(r)(1) of the Social Security Act, referred to in subdiv. (3)(B), is codified as 42 U.S.C. § 1395x(r)(1).

Titles II and XVI of the Social Security Act, referred to in subdiv. (4)(A), are codified as 42 U.S.C. §§ 401 et seq. and 1381 et seq., respectively.

Amendments--2021. Intro. para.: Substituted "As used in" for "In” at the beginning of the paragraph.

Subdiv. (3)(A)(i): Substituted "that" for "which" three times.

Subdiv. (5): Inserted "that is" following "organization".

Subdiv. (6): Repealed.

Subdiv. (7): Substituted "that" for "which" twice and substituted "by regulation" for "under regulations" following "Secretary”.

§ 8003. Program limitations.

  1. Cash contributions.  The Treasurer or designee shall not accept a contribution:
    1. unless it is in cash; or
    2. except in the case of a contribution under 26 U.S.C. § 529A(c)(1)(C) (relating to a change in a designated beneficiary or program), if such contribution to an ABLE account would result in aggregate contributions from all contributors to the ABLE account for the taxable year exceeding the amount in effect under 26 U.S.C. § 2503(b) for the calendar year in which the taxable year begins.
  2. Separate accounting.  The Treasurer or designee shall provide separate accounting for each designated beneficiary.
  3. Limited investment direction.  A designated beneficiary may, directly or indirectly, direct the investment of any contributions to the Vermont ABLE Savings Program, or any earnings thereon, no more than two times in any calendar year.
  4. No pledging of interest as security.  A person shall not use an interest in the Vermont ABLE Savings Program, or any portion thereof, as security for a loan.
  5. Prohibition on excess contributions.  The Treasurer or designee shall adopt adequate safeguards under the Vermont ABLE Savings Program to prevent aggregate contributions on behalf of a designated beneficiary in excess of the limit established by the State pursuant to 26 U.S.C. § 529(b) (6).

    Added 2015, No. 51 , § C.7, eff. June 3, 2015; amended 2015, No. 97 (Adj. Sess.), § 70.

History

Amendments--2015. (Adj. Sess.). Subdiv. (a)(2): Substituted "26 U.S.C. § 2503(b)" for "subsection 2503(b) of this title".

§ 8004. Reports.

  1. In general.  The Treasurer or designee shall make such reports regarding the Program to the Secretary and to designated beneficiaries with respect to contributions, distributions, the return of excess contributions, and such other matters as the Secretary may require.
  2. Notice of establishment of account.  The Treasurer or designee shall submit a notice to the Secretary upon the establishment of an ABLE account that includes the name and state of residence of the designated beneficiary and such other information as the Secretary may require.
  3. Electronic distribution statements.  The Treasurer or designee shall submit electronically on a monthly basis to the Commissioner of Social Security, in the manner specified by the Commissioner, statements on relevant distributions and account balances from all ABLE accounts created under the Vermont ABLE Savings Program.
  4. Requirements.  The Treasurer or designee shall file the reports and notices required under this section at such time and in such manner and furnished to such individuals at such time and in such manner as may be required by the Secretary.

    Added 2015, No. 51 , § C.7, eff. June 3, 2015.

PART 6 Service Providers

CHAPTER 82. SAFETY PROVISIONS FOR WORKERS

Sec.

§ 8201. Safety policies for employees delivering direct social or mental health services.

    1. The Secretary of Human Services, in consultation with each department of the Agency, shall establish and maintain a written workplace violence prevention and crisis response policy that meets or exceeds the requirements of this chapter in place for the benefit of employees delivering direct social or mental health services. (a) (1)  The Secretary of Human Services, in consultation with each department of the Agency, shall establish and maintain a written workplace violence prevention and crisis response policy that meets or exceeds the requirements of this chapter in place for the benefit of employees delivering direct social or mental health services.
    2. The Secretary shall ensure that the Agency's contracts with providers whose employees deliver direct social or mental health services and that are administered or designated but not otherwise licensed by a department of the Agency include the requirement that providers establish and maintain a written workplace violence prevention and crisis response policy that meets or exceeds the requirements of this chapter in place for the benefit of employees delivering direct social or mental health services.
  1. A written workplace violence prevention and crisis response policy prepared with input from an employee delivering direct social or mental health services shall minimally include the following:
    1. measures the provider intends to take to respond to an incident of or credible threat of workplace violence against an employee delivering direct social or mental health services;
    2. a system for centrally recording all incidents of or credible threats of workplace violence against an employee delivering direct social or mental health services;
    3. a training program to educate employees delivering direct social or mental health services about workplace violence and ways to reduce the risks; and
    4. the development and maintenance of a violence prevention and crisis response committee that includes employees delivering direct social or mental health services to monitor ongoing compliance with the violence prevention and crisis response policy and to assist employees delivering direct social or mental health services.
  2. In preparing the written violence prevention and crisis response policy required by this section, the Secretary and providers identified in subdivision (a)(2) of this section shall consult the U.S. Occupational Safety and Health Administration's Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, as amended.
  3. A written workplace violence prevention and crisis response policy shall be evaluated annually and updated as necessary by the violence and prevention response committee and provided to employees delivering direct social or mental health services.
  4. The requirements of this section shall neither be construed as a waiver of sovereign immunity by the State nor as creating any private right of action against the State for damages resulting from failure to comply with this section. This section shall not be construed to limit or eliminate any legal remedy available to an employee prior to the enactment of this section.

    Added 2015, No. 109 (Adj. Sess.), § 1, eff. Jan. 1, 2017. LP005 2022/01/12 06:07:57 LP009 2022/01/12 06:09:39

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