Suggested State Legislation | 1999 | Volume 58 by The Council of State Governments

SUGGESTED S TAT E L E G I S L AT I O N 1999 Volume 58 Developed by the Committee on Suggested State Legislation

The Council of State Governments Lexington, Kentucky Headquarters: (606) 244-8000 Fax: (606) 244-8001 E-mail: info@csg.org Internet: www.csg.org

Copyright 1998 The Council of State Governments 2760 Research Park Drive P.O. Box 11910 Lexington, KY 40578-1910 Manufactured in the United States of America Publication Order #: C067-9800 ISBN 0-87292-856-X Price: $59.00 CD-ROM Order #: C067-9800C Price: $89.00 All rights reserved. Inquiries for use of any material should be directed to: The Council of State Governments 2760 Research Park Drive P.O. Box 11910 Lexington, KY 40578-1910 (606) 244-8000 Publication Sales Order Department 1-800-800-1910

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The Council of State Governments Promoting State Solutions Regionally and Nationally The Council of State Governments is a nonprofit, nonpartisan organization that serves all three branches of state government through leadership, education, research and information services. Founded in 1933, this multibranch organization of the states and U.S. territories champions excellence in state government, working with state leaders across the nation and through its regions to put the best ideas and solutions into practice. To this end, The Council of State Governments: Builds leadership skills to improve decision-making; Advocates multistate problem-solving and partnerships; Interprets changing national and international conditions to prepare states for the future; and, Promotes the sovereignty of the states and their role in the American federal system.

Headquarters: 2760 Research Park Drive P.O. Box 11910 Lexington, KY 40578-1910 Phone: (606) 244-8000 Fax: (606) 244-8001 E-mail: info@csg.org Internet: www.csg.org Daniel M. Sprague, Executive Director Shari M. Hendrickson, Deputy Executive Director/Chief Operating Officer Bob Silvanik, Director of Program and Policy Development

Council Officers President: Gov. Pedro Rosello, P.R. President-Elect: Gov. Tommy Thompson, Wis.

Chair: Rep. Charlie Williams, Miss. Chair-Elect: Sen. Kenneth McClintock, P.R. Vice Chair: Rep. Tom Ryder, Ill.

Council Offices Eastern: Alan V. Sokolow, Director 5 World Trade Center, Suite 9241 New York, NY 10048, (212) 912-0128 FAX: (212) 912-0549, E-mail: csge@csg.org Midwestern: Michael H. McCabe, Director 641 E. Butterfield Road, Suite 401 Lombard, IL 60148, (630) 810-0210 FAX: (630) 810-0145, E-mail: csg-midwest@csg.org Southern: Colleen Cousineau, Director 3355 Lenox Road, Suite 1050 Atlanta, GA 30326, (404) 266-1271 FAX: (404) 266-1273, E-mail: slc@csg.org Western: Kent Briggs, Director 121 Second Street, 4th Floor San Francisco, CA 94105, (415) 974-6422 FAX: (415) 974-1747, E-mail: csgw@csg.org Denver, CO: (303) 572-5454, FAX: (303) 572-5499 Washington, D.C.: Jim Brown, General Counsel and Director 444 N. Capitol Street, NW, Suite 401 Washington, D.C. 20001, (202) 624-5460 FAX: (202) 624-5452, E-mail: dcinfo@csg.org

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Forward The Council of State Governments (CSG) is pleased to bring you this volume of Suggested State Legislation, the 58th in a valued series of compilations of draft legislation from state statutes on topics of current interest and importance to the states. The draft legislation found in this volume represents many hours of work completed by the CouncilÂ&#x2019;s Committee on Suggested State Legislation and by legislators and legislative staff across the country in the states that originated the bills. The entries in this book were selected from hundreds of submissions, and most are based on existing state statutes. Neither The Council nor the Committee seeks to influence the enactment of state legislation; throughout the years, however, both have found that the experiences of one state may prove beneficial to others. It is in this spirit that these proposals are presented. November 1998 Lexington, Kentucky

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Daniel M. Sprague Executive Director The Council of State Governments

Contents CSG Committee on Suggested State Legislation 1998 ........................................................ vii Introduction ....................................................................................................................... xiii Suggested State Legislation Style ...................................................................................... xv Sample Act ....................................................................................................................... xvi

Suggested Legislation Alternative Teacher Certification ........................................................................................... 1 Automated Victim Notification System .................................................................................. 7 Brokerage Real Estate Disclosure ........................................................................................ 9 Business Coordination ....................................................................................................... 20 Chemical Castration for Sex Offenders (Note) ................................................................... 23 Cloning ............................................................................................................................. 25 Conditional Release of Sex Offenders ................................................................................ 29 Confidentiality of Records of Genetic Tests ......................................................................... 36 Defined Contribution Plans (Statement) ............................................................................. 41 Environmental Leadership Program ................................................................................... 44 Experimental Medical Care Disclosure ............................................................................... 52 Farm and Ranch Solid Waste Cleanup and Abatement Program ........................................ 56 Fertilizer ............................................................................................................................ 61 Foreign Capital Depository ................................................................................................ 72 Genetic Information Privacy ............................................................................................. 107 Grandparents as Foster Parents ...................................................................................... 112 Gross Sexual Imposition With a Controlled Substance ...................................................... 114 Hospital Conversions ....................................................................................................... 131 Inmate Assaults with Body Fluids or Other Hazardous Substances ................................... 138 Institutions of Public Charity (Statement) .......................................................................... 140 Intimidating Legislative Witnesses .................................................................................... 146 Land Bank Authorities ...................................................................................................... 148 Lead Exposure ................................................................................................................ 154 Limited-Service Rural Hospitals ....................................................................................... 162 Livestock Management Facilties ....................................................................................... 171 Livestock Waste Management ......................................................................................... 187 Local Government Service Delivery Systems ................................................................... 199 Nonhazardous and Nonliquid Waste Handling (Statement) ............................................... 207 Suggested State Legislation - v

Obesity ........................................................................................................................... 209 PerpetratorÂ&#x2019;s Assumption of Risk (Note) ........................................................................... 212 Premium Sharing ............................................................................................................ 213 Prisoner Litigation Reform ............................................................................................... 220 Private School Tuition; Tax Credit ...................................................................................... 224 Quarry Operation, Reclamation and Safe Closure ............................................................ 227 Self-employment Assistance ............................................................................................ 239 Slamming and Loading MN .............................................................................................. 243 Small Business Air Quality Assistance ............................................................................. 246 Standby Guardianship ..................................................................................................... 250 State Internet Legislation (Note) ....................................................................................... 257 State Transportation Infrastructure Banks (Note)............................................................... 260 Student Religious Liberty ................................................................................................. 262 Tax Credits for School-to-Career Internships .................................................................... 266 Year 2000/Y2K (Note) ...................................................................................................... 268 Federal Mandates for State Action (Note) ......................................................................... 270 Index ............................................................................................................................... 273

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CSG Committee on Suggested State Legislation 1998 Co-Chair

*Senator Robert R. Cupp, Ohio *Representative Jim Simpson Jr., Mississippi

Vice Chair

*Elizabeth Stewart, Assistant Attorney General, Office of the Attorney General

Alabama

Representative Albert Hall Jerry L. Bassett, Director, Legislative Reference Service *Penny Davis, Associate Director, Alabama Law Institute Representative Tony Petelos

Alaska

Tamara Brandt Cook, Director, Legal Services, Legislative Affairs Agency Senator Rick Halford *Terri Lauterbach, Legislative Counsel, Legislative Affairs Agency

Arkansas

Senator Allen Gordon Senator Tom Kennedy Tim Massanelli, Parliamentarian

California

George Deleon, Reciprocity Officer, State Controller s Office

Colorado

Charles S. Brown, Director, Legislative Council Senator Ray Powers

Connecticut

Sharon Brais, Assistant Director, Legislative Commissioner s Office

Delaware

Representative William Oberle Senator Robert J. Voshell

Florida

Representative Edward J. Healey James R. Lowe, Staff Director, House Bill Drafting Services Mitch Rubin, Executive Assistant and Counsel, House of Representatives Mario L. Taylor, Staff Director, House Community Affairs Committee Suggested State Legislation - vii

Georgia

Joy Hawkins, Director of Senate Research Senator Mark Taylor

Hawaii

Senator Cal Kawamoto Yen Lew, Ombudsman, Office of the Senate President

Idaho

Representative Celia Gould

Illinois

Senator Dan Cronin *Senator John Cullerton John M. McCabe, Legislative Leader, National Conference of Commissioners on Uniform State Laws Donald R. Vonnahme, Director, Division of Water Resources, Department of Transportation

Indiana

Arden Chilcota, Executive Director, Legislative Services Agency Representative Susan Crosby Representative John R. Gregg Tim Jeffers, Chief of Staff, Office of the Speaker Senator Luke Kenley Representative Sue Scholer

Iowa

Representative Richard Arnold Senator Steve Hansen Representative Keith Krieman

Kansas

Senator Anthony Hensley Representative Mike OÂ&#x2019;Neal Senator Chris Steineger

Kentucky

Representative J.R. Gray *Joyce Honaker, Committee Staff Administrator, Legislative Research Commission Representative Thomas Robert Kerr

Louisiana

Jerry Guillot, Administrator, Senate Research Services *Representative Joseph Toomy

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Maryland

Delegate Ann Marie Doory Senator Thomas V. Mike Miller Senator Ida G. Ruben William G. Somerville, Revisor of Statutes and Deputy Director for Legislative Drafting, Department of Legislative Reference Michael I. Volk, Director, Legislative Services Division

Massachusetts

Senator William R. Keating Representative Janet OÂ&#x2019;Brien Richard Walsh, Associate Counsel, Office of House Counsel

Michigan

Attorney General Frank Kelley *William J. Pierce, Executive Director, National Conference of Commissioners on Uniform State Laws Representative Hubert Price

Minnesota

Representative Edwina Garcia Representative Mary Jo McGuire Senator Thomas Neuville *Senator Allan H. Spear

Mississippi

Teresa Beck, Director, Legislative Services Joy Fergus, Office Supervisor, Senate Charles J. Jackson Jr., Clerk of the House Representative Bobby Moak

Missouri

Ed Bybee, Chief Design Engineer, Division of Design and Construction B. Darrell Jackson, Director, House Research Office Representative Scott Lakin Senator Ed Quick Representative Lana Stokan

Nebraska

*Senator Chris Abboud Patrick J. OÂ&#x2019;Donnell, Clerk of the Legislature

Nevada

Assemblyman Bernie Anderson Senator Bob Coffin Assemblyman David E. Humke Kim Morgan, Principal Deputy Legislative Counsel, Legislative Counsel Bureau Senator Randolph J. Townsend Suggested State Legislation - ix

New Jersey

Kathleen Crotty, Executive Director, Senate Minority Office Senator John Matheussen

New Mexico

Senator Fernando R. Macias *Representative Nick L. Salazar

New York

*Senator Kemp Hannon

North Carolina

Representative Joni Bowie Gerry F. Cohen, Director, Legislative Bill Drafting Division, Legislative Services Commission Representative Milton Fitch Jr. Representative Jean Preston Representative Carolyn Russell *Terrence D. Sullivan, Director of Research, Legislative Services Commission

North Dakota

Representative Al Carlson

Ohio

Senator Bruce Johnson Senator Rhine McLin

Oklahoma

Suzanne Broadbent, Director, Senate Committee Staff Division Scott Emerson, Chief Counsel, Legal Division, House of Representatives Senator Bruce Price Senator Darryl Roberts Senator Gerald Wright

Pennsylvania

Edward C. Hussie, Chief Counsel to the Republican Leader *Louis B. Kozloff, Coordinator, Legislative Floor Activities, House of Representatives Stephen MacNett, Counsel to the Senate Majority Joseph W. Murphy, Chief Counsel, House Republican Caucus *Virgil Puskarich, Executive Director, Local Government Commission

Puerto Rico

Senator Mercedes Otero de Ramos Manuel Torres Nieves, Chief of Staff, Committee on Federal and Financial Affairs, House of Representatives

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Rhode Island

Representative Vincent Mesolella

South Carolina

Frank Caggiano, Clerk of the Senate Michael N. Couick, Attorney, State Senate

South Dakota

Senator Jim Dunn Senator Harold Halverson Thomas Magedanz, Legislative Research Council

Tennessee

James A. Clodfelter, Director, Office of Legal Services Senator Steve I. Cohen Representative Lois DeBerry Senator Joe M. Haynes Senator James F. Kyle Jr.

Texas

Representative Clyde Alexander Representative Hugo Berlanga Steve Bresnen, Special Assistant, Office of the Lieutenant Governor Susan Moore

Utah

Senator Joseph Hull, Assistant Minority Whip *Representative Ray Short Richard Strong, Director and General Counsel, Legislative Research Representative Richard Walsh

Virginia

Virginia A. Adkins, Staff Attorney, Division of Legislative Services John M. Bennett, Staff Director, Senate Finance Committee Delegate Glenn R. Croshaw Senator R. Edward Houck Delegate Thomas M. Jackson Jr. E.M. Miller Jr., Director, Division of Legislative Services Senator Jackson E. Reasor Jr.

Washington

Senator Jim Hargrove Senator Shirley J. Winsley

West Virginia

Delegate Jerry L. Mezzatesta Delegate Rick Staton Senator Earl Ray Tomblin Suggested State Legislation - xi

Wyoming

Senator April Brimmer Kunz Richard Miller, Director, Legislative Service Office

Former CSG, Chairmen and Presidents (Ex Officio Voting Members) Governor Terry E. Branstad, Iowa Governor Mel Carnahan, Missouri Representative John Connors, Iowa Governor Jim Edgar, Illinois Senator Hugh T. Farley, New York Senator Jeannette Hamby, Oregon Representative Roy Hausauer, North Dakota Representative Bob Hunter, North Carolina Governor Michael Leavitt, Utah Senator John J. Marchi, Senate Vice President Pro Tem, New York Representative John E. Miller, Arkansas Governor Zell Miller, Georgia Representative Thomas B. Murphy, Speaker of the House, Georgia Governor Ben Nelson, Nebraska Senator Jeff Wells, Majority Leader, Colorado Assemblyman Robert C. Wertz, New York

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Introduction A single state s experience in a new field frequently leads to the adoption of similar action in other states, if the problem is general, the approach is well conceived, and other states can be made aware of the action. That statement is a simple one, but it remains as true today as it did when it first appeared 30 years ago in the introduction to the 28th volume of Suggested State Legislation. For 58 years, The Council of State Governments Suggested State Legislation (SSL) program has informed state policy-makers on a broad range of legislative issues, and its national Committee on Suggested State Legislation has been an archetype on interstate dialogue, one successfully imitated in a variety of ways. The Committee on Suggested State Legislation originated as a group of state and federal officials who first met in August of 1940 to review state laws relating to internal security. The result was a program of suggested state legislation published as A Legislative Program for Defense. The Committee reconvened following the nation s entry into World War II in order to develop a general program of state war legislation. By 1946, the volume of Suggested State War Legislation and Suggested State Legislation, gave way to a volume simply titled Suggested State Legislation, an annual volume of draft legislation on topics of major governmental interest. Today, SSL Committee members represent all regions of the country and many of the major functional areas of state government. They include legislators, legislative staff and other state governmental officials who contribute their time and efforts to assisting the states in the identification of timely and innovative state legislation. The items in this, the 58th compilation of Suggested State Legislation, represent the culmination of a year-long process in which legislation submitted by state officials and staff, CSG Associates and CSG staff was received and reviewed by members of the SSL Committee. The Committee also considers legislation from other sources, but only when that legislation is submitted through a state official. Other sources include public interest groups and members of the corporate community who are not CSG Associates. During this process, members of a Subcommittee on Scope and Agenda met on three separate occasions: first, in December 1997 in Honolulu, Hawaii, again, in May 1998 in Phoenix, Arizona and a third time in Chicago, Illinois in August 1998, to screen and recommend legislation for final consideration by the SSL Committee. At their annual meeting in August 1998 in Chicago, Illinois, the members of the full committee examined the proposals referred by the Subcommittee on Scope and Agenda and selected the items that appear in this volume. Although these items are published here as suggested legislation, neither The Council of State Governments nor the SSL Committee are in the position of advocating their enSuggested State Legislation - xiii

actment. Instead, the entries are offered as an aid to state officials interested in drafting legislation in a specific area, and can be looked upon as a guide to areas of broad current interest in the states. In fact, throughout the SSL solicitation, review and selection processes, members of the Committee employ a specific set of criteria to determine which items will appear in the volume: Is the issue a significant one currently facing state governments? Does the issue have national or regional significance? Are fresh and innovative approaches available to address the issue? Is the issue of sufficient complexity that a bill drafter would benefit from having a comprehensive draft available? Does the bill or Act represent a practical approach to the problem? Does the bill or Act represent a comprehensive approach to the problem or is it tied to a narrow approach that may have limited relevance for many states? Is the structure of the bill or Act logically consistent? Are the language of and style of the bill or Act clear and unambiguous? All items selected for publication in the annual volume are presented in a general format as shown in the Suggested State Legislation Style Manual and Sample Act which follow on pages xv and xvi. However, beginning with the 1997 volume, items presented in Suggested State Legislation volumes reflect the style and form as they were submitted to the program. Revisions in the headings and numbering and other modifications may be necessary in order to conform to local practices, and decisions must be made regarding optional sections and provisions. Readers should note that Suggested State Legislation drafts typically do not duplicate actual state legislation. A Statement, in lieu of a draft Act, may appear in a volume when the SSL Committee has reviewed and approved a piece of legislation, but its length and/or complexity preclude its publication in whole or in the standard SSL format. Notes also may be used when the Committee is particularly interested in highlighting and summarizing a variety of legislative actions undertaken by the states in a particular area. Although a formal solicitation of the states is conducted annually to gather legislation for consideration by the SSL Committee, state officials and staff, CSG Associates and CSG staff are encouraged to submit - at any time - legislation which is likely to be of interest and relevance to other states. In order to facilitate the selection and review process, it is particularly helpful for respondents to provide information on the current status of the legislation, an enumeration of other states with similar provisions, and any summaries or analyses of the legislation that may have been undertaken. Legislation and accompanying materials should be submitted to the Suggested State Legislation Program, Program, Policy & Membership Services, The Council of State Governments, 2760 Research Park Drive, P.O. Box 11910, Lexington, Kentucky 40578-1910, (606) 244-8000 or fax (606) 244-8001. Interested readers can find out more about the SSL program by visiting the SSL pages at CSG s Internet Web site at www.csg.org. xiv - The Council of State Governments

Suggested State Legislation Style Style is the custom or plan followed in typographic arrangement or display. Starting with the 1997 volume, items presented in Suggested State Legislation more closely reflect the style and form as they were submitted to the program. Generally, CSG only modifies the language of the bills or laws that are submitted to the program in order to clarify their meaning when they are converted into SSL drafts. However, the Committee on Suggested State Legislation does not guarantee that items presented on its dockets or in Suggested State Legislation volumes represent the exact versions of those items as submitted to the SSL Program or introduced or enacted by a state.

Introductory Matter The first component in a Suggested State Legislation draft is an abstract. Abstracts provide a brief description of the Act, highlight unique features, and provide background about other states, if applicable.

Submitted As This component indicates the state, title, bill number or legal citation and adoption date of the original bill or law as submitted to the Suggested State Legislation Program. Copies of the original state bills or laws referenced in the abstracts, Notes or Statements can be obtained by contacting the states directly.

Standardized Sections and Form Items presented in this and future Suggested State Legislation volumes will generally retain the same enumeration as the bills or Acts as submitted by the states. This includes sections, subsections and paragraphs. However, modifications to eliminate extraneous language or to add sections such as Severability, Repealor, and Effective Date, are made to the drafts as necessary to enhance their readability. Often it is also necessary in draft legislation to indicate a state alternative to the name of an agency, the number of members on a committee, punishment for an offense, etc. Brackets are use to highlight these cases. The word Act refers to proposed and enacted bills. Generally, the items presented to committee members are the most recent versions.

Suggested State Legislation - xv

Sample Act Criminal Rehabilitation Research Act This draft Act enables a state to facilitate research, including controlled experiments, in criminal sentencing and rehabilitation methods in order to determine the most effective and humane means of deterring crime and rehabilitating delinquent and criminal offenders . . .. The criminal justice system neither deters nor rehabilitates as effectively as possible. Sentencing and treatment decisions continue to be handicapped by lack of scientific experience. New treatment programs are developed haphazardly, if at all, and their relative effectiveness is rarely evaluated. The results are wasted lives, needless public expenditures, and increased crime. Dissatisfaction with existing correctional institutions has increased and the demand for reform has intensified, but reform, to be meaningful, must be based on facts . . .. This draft legislation was developed by the Criminal Sentencing Project of Yale Legislative Services. A comprehensive report on Criminal Rehabilitation, including a detailed commentary to the suggested legislation, can be obtained from Yale Legislative Services, Yale Law School, New Haven, Connecticut 06520.

Suggested Legislation (Title, enacting clause, etc.) Section 1. [Short Title.] This Act may be cited as the Criminal Rehabilitation Research Act. Section 2. [Definitions.] As used in this Act: (1) Commission means the [rehabilitation research commission]. (2) Commissioner means a member of the [rehabilitation research commission]. (3) Offender means a person adjudicated delinquent or convicted of a criminal offense under the laws and ordinances of the state and its political subdivisions. Section 4. [Rehabilitation Research Commission.] (a) A [rehabilitation research commission] is established to review, approve, and facilitate research directed at the rehabilitation of delinquent and criminal offenders and to disseminate the results of that research to correctional officials and other interested individuals and agencies. (b) The commission shall consist of [ten (10)] members appointed by the governor [with the advice and consent of the senate]. Comment: It is suggested that some commission members be ex-offenders.

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Alternative Teacher Certification This Act establishes a program to certify people as teachers based upon their work or life experiences and instead of completing a traditional teacher preparation program. It outlines four options; including certification of a person with exceptional work experience, certification through a local district training program, certification of a professional from a postsecondary institution and certification of an adjunct instructor who has specific skills and training. Generally, qualified participants get a provisional teaching certificate that they must renew every year for up to three years. They get a regular teaching certificate if they continue to teach beyond three years. Submitted as: Kentucky SB 265 Enacted into law, 1998.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Â&#x201C;Alternative Teaching Act.Â&#x201D;

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Section 2. [Legislative Findings.] The [General Assembly] hereby finds that: (1) (a) There are people who have distinguished themselves through a variety of work and educational experiences that could enrich teaching in schools; (b) There are distinguished scholars who wish to become teachers in public schools, but who did not pursue a teacher preparation program; (c) There are people who need to be recruited to teach in schools to meet the diverse cultural and educational needs of students; and (d) There should be alternative procedures to the traditional teacher preparation programs that qualify people as teachers. (2) There are hereby established alternative certification program options as described in sections (3) through (6) of this Act. (3) It is the intent of the [General Assembly] that the [Educational Professional Standards Board] inform scholars, people with exceptional work experience, and people with diverse backgrounds who have potential as teachers of these options and assist local boards of education in implementing these options and recruitment of people who can enhance the education Suggested State Legislation - 1

Alternative Teacher Certification 19 20 21 22

system in this state. (4) The [Education Professional Standards Board] shall promulgate administrative regulations establishing standards and procedures for the alternative certification options described in this Act.

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Section 3. [Option 1: Certification of a Person with Exceptional Work Experience.] (1) A person who has exceptional work experience and has been offered employment at the secondary level in a local school district shall receive a [one (1)] year provisional teaching certificate with approval by the [Education Professional Standards Board] of a joint application by the person and the employing school district under the following conditions: (a) The application contains documentation of all education and work experience; (b) The candidate has documented [ten (10)] years of exceptional work experience in the area in which certification is being sought; (c) The candidate possesses a bachelorÂ&#x2019;s degree, with a grade point average of [two-and-one-half (2.5)] on a [four (4)] point scale from a nationally or regionally accredited postsecondary institution; and (d) The candidate shall participate in an teacher internship program under [insert citation.] After successful completion of the internship, the candidate shall receive a regular provisional certificate. (2) An individual employed under this alternative shall be certified for [one (1)] year only, and may be approved for subsequent [one (1)] year renewals upon request of the local board of education and approval of the [Education Professional Standards Board.] A teacher who successfully completes [three (3)] contract years under the provisions of this section shall be awarded a regular provisional certificate, and subject to certificate renewal requirements the same as any other teacher with a regular provisional certificate.

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Section 4. [Option 2: Certification Through a Local District Training Program.] A local district or group of districts may seek approval for a training program. The state-approved local district training program is an alternative to the college teacher preparation program as a means of acquiring teacher certification for a teacher at any grade level. The training program may be offered for all teaching certificates approved by [Education Professional Standards Board,] including interdisciplinary early childhood education, except for specific certificates for teachers of exceptional children. To participate in a state-approved local district alternative training program, the candidate shall: (a) Possess a bachelorÂ&#x2019;s degree with a grade point average of [two-

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Alternative Teacher Certification 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

and-one-half (2.5)] on a [four (4)] point scale or, upon approval by the [Education Professional Standards Board,] at least a grade point average of [two (2)] on a [four (4)] point scale if the candidate has exceptional life experience related to teaching and has completed the bachelorÂ&#x2019;s degree at least [five (5)] years prior to submitting an application to the program. (b) Pass written tests designated by the [Education Professional Standards Board] for content knowledge in the specific teaching field of the applicant with minimum scores in each test as set by the [Education Professional Standards Board.] To be eligible to take a subject field test, the applicant shall have completed a [thirty (30)] hour major in the subject field or [five (5)] years of experience in the subject field as approved by the [Education Professional Standards Board.] (c) Have been offered employment in a school district which has a training program approved by the [Education Professional Standards Board.] (d) Upon meeting the participation requirements as established in this subsection, the candidate shall be issued a [one (1)] year provisional certificate by the [Education Professional Standards Board.] The regular provisional certificate shall be issued upon satisfactory completion of the program and the teacher testing internship program pursuant to [insert citation.] (e) The [Education Professional Standards Board] may reject the application of any candidate who is judged as not meeting academic requirements comparable to those for students enrolled in teacher preparation programs in this state.

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Section 5. [Option 3: Certification of a Professional from a Postsecondary Institution.] A candidate who possesses the following qualifications may receive alternative certification for teaching at the secondary level: (a) A masterÂ&#x2019;s degree or doctoral degree in the academic subject area for which certification is sought; (b) A minimum of [five (5)] years of full-time teaching experience, or its equivalent, in the academic subject area for which certification is sought in a regionally- or nationally-accredited institution of higher education; and (c) Successful completion of the teacher internship requirement imposed under [insert citation.]

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Section 6. [Option 4: Certification of An Adjunct Instructor.] (1) A person who has expertise in areas such as art, music, foreign language, drama, science, and other specialty areas may be employed as an adjunct instructor in a part-time position by a local board of educaSuggested State Legislation - 3

Alternative Teacher Certification 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

tion. (2) Adjunct instructor means someone who has training or experience in a specific subject area and who has met the requirements for certification as an adjunct instructor established by the [Education Professional Standards Board.] (3) The [Education Professional Standards Board] shall adopt administrative regulations governing the qualifications and utilization of adjunct instructors. These administrative regulations shall specify the minimum essential competencies which must be demonstrated by people seeking an adjunct instructor certificate. (4) Holders of an adjunct instructor certificate shall be employed on an annual contract basis and shall not be eligible for continuing service status pursuant to [insert citation] or for the retirement provisions of [insert citation.] The granting of successive annual contracts to the holder of an adjunct instructor certificate shall not give rise to a claim of expectation of continuing employment. (5) Local school boards may contract with certified adjunct instructors for part-time services on an hourly, daily or other periodic basis as best meets the needs of the board. An adjunct instructor shall not fill a position that will result in the displacement of a qualified teacher with a regular certificate who is already employed in the district. (6) An orientation program shall be developed and implemented for adjunct instructors by the local school board.

1 2 3

Section 7. [Salary Schedules.] A teacher certified under sections 2 through 6 of this Act shall be placed on the local district salary schedule for the rank corresponding to the degree held by the teacher.

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Section 8. [Professional Support Team.] (1) As used in this section, professional support team means a school principal, an experienced teacher, a college or university faculty member, and an instructional supervisor. If an instructional supervisor or college or university faculty member is not available, the district shall assign a member with comparable experience. The school principal shall serve as the chairman of the team. (2) The [Education Professional Standards Board] shall establish a training program for professional support teams which shall be implemented by the [Department of Education.] The training shall include content and procedures for the evaluation of teacher candidates. Completion of the training shall be evidenced by successfully passing the examinations prescribed by the [board.] (3) A local school district seeking to hire a teacher pursuant to section (4) of this Act shall submit a plan for a local district alternative training program to the [Department of Education] and have it approved

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Alternative Teacher Certification 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60

in accordance with administrative regulations established by the [Education Professional Standards Board.] The district shall show evidence that it has sought joint sponsorship of the program with a college or university. No local school district shall employ a teacher seeking certification in a state-approved local district training program unless it has submitted a plan and received approval by the [Education Professional Standards Board.] (4) Each state approved local district alternative training program shall provide the teacher candidate with essential knowledge and skills and include, but not be limited to, the following components: (a) A full-time seminar and practicum of no less than [eight (8)] weeksÂ&#x2019; duration prior to the time the candidate assumes responsibility for a classroom. The content of the formal instruction shall be prescribed by the [Education Professional Standards Board] and shall include an introduction to basic teaching skills through supervised teaching experiences with students, as well as an orientation on the policies, organization, and curriculum of the employing district. (b) A period of classroom supervision while the candidate assumes responsibility on a [one-half (1/2)] time basis for a classroom and continuing for [eighteen (18)] weeks. During this period, the candidate shall be visited and critiqued no less than [one (1)] time per week by [one (1)] or more members of a professional support team appointed by the local district and assigned according to the administrative regulations adopted by the [Education Professional Standards Board.] The candidate shall be formally evaluated at the end of [five (5)] weeks, at the end of the second [five (5)] weeks, and at the end of the last [eight (8)] weeks by the members of the team. During this period, the candidate shall continue formal instruction which emphasizes student assessment, child development, learning, curriculum, instruction of exceptional children, and school and classroom organization. (c ) An additional period of at least [eighteen (18)] weeks continued supervision of the teacher candidate who may be assigned full-time classroom duties. During this period the teacher candidate shall be critiqued at least [one (1)] time per month and shall be observed formally and evaluated at least [two (2)] times per month. No more than [two (2)] months shall pass without a formal observation. Formal instruction shall also continue during this period. In addition, opportunities shall be provided for the teacher candidate to observe the teaching of experienced teachers. (5) At least [two hundred fifty (250)] hours of formal instruction shall be provided in all [three (3)] phases of the program combined. (6) At the conclusion of the alternative training program, the chair of the support team shall prepare a comprehensive evaluation report on the teacher candidateÂ&#x2019;s performance. This report shall be submitted to Suggested State Legislation - 5

Alternative Teacher Certification 61 62 63 64 65 66 67 68 69 70 71

the [Education Professional Standards Board] and shall contain a recommendation as to whether the teacher candidate shall be issued a [one (1)] year certificate of eligibility to complete the internship pursuant to [insert citation.] The support team shall make [one (1)] of the following recommendations: (a) Approved: recommends issuance of certificate to complete the internship; (b) Insufficient: recommends the candidate be allowed to seek re-entry into a teacher preparation program; or (c) Disapproved: recommends the candidate not be allowed to enter a teacher preparation program.

1 2 3 4 5 6 7 8

Section 9. [Teachers for Gifted Education.] Anyone employed as a teacher for gifted education shall hold an appropriate certificate endorsement for gifted education, except that all teachers having certificates initially issued for a duration period on or before [July 1, 1984,] or proper renewals thereof, shall remain eligible thereafter for assignment as teachers for gifted education, for the grade levels of the base certificate, provided any such assignment was valid under the original certificate at the time it was issued.

Section 10. [Severability.] [Insert severability clause.]

Section 11. [Repealer.] [Insert repealer clause.]

Section 12. [Effective Date.] [Insert effective date.]

6 - The Council of State Governments

Automated Victim Notification System The 1985 Suggested State Legislation Victim Notification of Offender Release Act requires written notification to crime victims when prisoners receive suspended sentences, probation, parole or an unconditional release. This Act, which is based on Alaska law, directs the state corrections department to establish an automated telephone service to notify crime victims when there is a change in the status of their offender. Staff with the American Probation and Parole Association and the National Victims Assistance Project say that although many localities and prisons are establishing automated notification systems, Alaska may have been one of the first states that mandated it on statewide basis for state facilities. Submitted as: Alaska CH 73, Laws of 1997 (SB 25) Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as an Act to Provide an Automated Victim Notification and Prisoner Information System.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Section 2. [Automated Victim Notification System - Establishment.] (a) The [Department of Corrections] shall establish an automated victim notification system that automatically provides crime victims with notice by telephone when there is a change in the status of their offender. The system must also allow crime victims to initiate telephone calls to the system to receive the latest status report for their offender. An automated victim notification system established under this section satisfies the duty of a state agency to notify a crime victim of the change in status of an offender. The failure of a system to provide notice to a crime victim does not give rise to a separate cause of action by the crime victim against the state, an agency of the state, or a municipality, or the officers, employees, or contractors of the state, agency of the state, or municipality. (b) Each [department] and each municipality shall cooperate with the [Department of Corrections] in establishing and maintaining an automated victim notification system required under this section.

Section 3. [Victim Notification.] Suggested State Legislation - 7

Automated Victim Notification System 2 3 4 5

(a) The [commissionerÂ&#x2019;s] duty under [insert citation] to notify a victim of a change in the status of an offender is satisfied by the notice provided by an automated victim notification system established under section 1 of this Act.

1 2 3 4 5 6 7 8 9 10

Section 4. [System Design Components.] (a) The [department] shall establish an automated inmate information system to allow persons to place surcharge telephone calls to obtain information concerning inmates and where they are incarcerated, bail and bond information, and information concerning visiting hours at institutions. The system shall be designed so that all the costs of the system are, at a minimum, met by the revenues received from calls to the system, and shall be designed so that the revenues received satisfy or defray the costs of establishing and maintaining an automated victim notification system if such a system is established under this Act.

Section 5. [Severability.] [Insert severability clause.]

Section 6. [Repealer.] [Insert repealer clause.]

Section 7. [Effective Date.] [Insert effective date.]

8 - The Council of State Governments

Brokerage Real Estate Disclosure The 1993 Suggested State Legislation contains a Residential Real Estate Disclosure Act that requires sellers to disclose defects in their residential property to prospective buyers. This legislation is based on a 1997 Florida law that clarifies the relationship between real estate agents/ brokers and real estate buyers and sellers. This Act requires real estate agents/brokers to provide customers with certain information before and after they enter into a brokerage relationship. This includes whether the broker/agent is acting as a single agent or as a transaction broker, and the duties of a single agent and a transaction broker. Submitted as: Florida CH 97-42 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Brokerage Relationship Disclosure Act.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Section 2. [Definitions.] As used in this Act: (1) Broker means a person who, for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or implicitly, or with an intent to collect or receive a compensation or valuable consideration therefor, appraises, auctions, sells, exchanges, buys, rents, or offers, attempts or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of business enterprises or business opportunities or any real property or any interest in or concerning the same, including mineral rights or leases, or who advertises or holds out to the public by any oral or printed solicitation or representation that he is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing, or renting business enterprises or business opportunities or real property of others or interests therein, including mineral rights, or who takes any part in the procuring of sellers, purchasers, lessors, or lessees of business enterprises or business opportunities or the real property of another, or leases, or interest therein, including mineral rights, or who directs or assists in the procuring of prospects or in the negotiation or closing of any transaction which does, or is calculated to, result in a sale, exchange, or leasing thereof, and who receives, expects, or is promSuggested State Legislation - 9

Brokerage Real Estate Disclosure 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63

ised any compensation or valuable consideration, directly or indirectly therefor; and all persons who advertise rental property information or lists. A broker renders a professional service and is a professional within the meaning of [insert citation]. Where the term appraise or appraising appears in the definition of the term broker, it specifically excludes those appraisal services which must be performed only by a state-licensed or state-certified appraiser, and those appraisal services which may be performed by a registered appraiser as defined in [insert citation.] The term broker includes any person who is a general partner, officer, or director of a partnership or corporation which acts as a broker. The term broker also includes any person or entity who undertakes to list or sell one or more timeshare periods per year in [one (1)] or more timeshare plans on behalf of any number of persons, except as provided in [insert citation.] (2) Broker-salesperson means a person who is qualified to be issued a license as a broker but who operates as a salesperson in the employ of another. (3) Commission means the state [Real Estate Commission.] (4) Customer means a member of the public who is or may be a buyer or seller of real property and may or may not be represented by a real estate licensee in an authorized brokerage relationship. (5) Department means the [Department of Business and Professional Regulation.] (6) Fiduciary means a broker in a relationship of trust and confidence between that broker as agent and the seller or buyer as principal. The duties of the broker as a fiduciary are loyalty, confidentiality, obedience, full disclosure, and accounting and the duty to use skill, care, and diligence. (7) First contact means at the commencement of the initial meeting of or communication between a licensee and a seller or buyer; however, the term does not include: (i) A bona fide open house or model home showing that does not involve eliciting confidential information, the execution of a contractual offer or an agreement for representation, or negotiations concerning price, terms, or conditions of a potential sale; (ii) Unanticipated casual encounters between a licensee and a seller or buyer that do not involve eliciting confidential information, the execution of a contractual offer or an agreement for representation, or negotiations concerning price, terms, or conditions of a potential sale; (iii) Responding to general factual questions from a prospective buyer or seller concerning properties that have been advertised for sale; or (iv) Situations in which a licensee s communications with a

10 - The Council of State Governments

Brokerage Real Estate Disclosure 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94

customer are limited to providing general factual information, oral or written, about the qualifications, background, and services of the licensee or the licensee s brokerage firm. In any of the situations described in subparagraphs i-iv, first contact occurs when the communications between the licensee and the prospective seller or buyer proceed in any way beyond the conditions or limitations described in subparagraphs i-iv. (8) Involuntarily inactive status means the licensure status that results when a license is not renewed at the end of the license period prescribed by the department. (9) Principal means the party with whom a real estate licensee has entered into a single agent relationship. (10) Real property or real estate means any interest or estate in land and any interest in business enterprises or business opportunities, including any assignment, leasehold, subleasehold, or mineral right; however, the term does not include any cemetery lot or right of burial in any cemetery; nor does the term include the renting of a mobile home lot or recreational vehicle lot in a mobile home park or travel park. (11) Salesperson means a person who performs any act specified in the definition of broker, but who performs such act under the direction, control, or management of another person. A salesperson renders a professional service and is a professional within the meaning of [insert citation.] (12) Single agent means a broker who represents, as a fiduciary, either the buyer or seller but not both in the same transaction. (13) Transaction broker means a broker who provides limited representation to a buyer, a seller, or both, in a real estate transaction, but does not represent either in a fiduciary capacity or as a single agent. (14) Voluntarily inactive status means the licensure status that results when a licensee has applied to the department to be placed on inactive status and has paid the fee prescribed by rule.

1 2 3 4 5 6 7 8 9 10 11 12

Section 3. [Discipline.] The Commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding [ten (10)] years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed [one thousand (1,000)] dollars for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant: (1) Has shared a commission with, or paid a fee or other compensation to, a person not properly licensed as a broker, broker-salesperson, or salesperson under the laws of this state, for the referral of real estate Suggested State Legislation - 11

Brokerage Real Estate Disclosure 13 14 15 16 17 18 19 20 21 22

business, clients, prospects, or customers, or for any one or more of the services set forth in Section (2)(1). For the purposes of this section, it is immaterial that the person to whom such payment or compensation is given made the referral or performed the service from within this state or else-where; however, a licensed broker of this state may pay a referral fee or share a real estate brokerage commission with a broker licensed or registered under the laws of a foreign state so long as the foreign broker does not violate any law of this state. (2) Has violated any provision of Sections 6 and 7 of this Act, including the duties owed under those sections.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Section 4. [Purpose.] In order to eliminate confusion and provide for a better understanding on the part of customers in real estate transactions, the [Legislature] finds that the intent of the [Brokerage Relationship Disclosure Act] is to provide that: (1) Disclosed dual agency as an authorized form of representation by a real estate licensee in this state is expressly revoked; (2) Real estate licensees be required to disclose to customers upon first contact in residential real estate transactions that they are not and will not be represented by a licensee in a real estate transaction unless they engage a real estate licensee in an authorized form of representation, either as a single agent or as a transaction broker; (3) Disclosure requirements for real estate licensees relating to nonrepresentation and authorized forms of brokerage representation are established; (4) Florida law provides that real estate licensees will operate as single agents or in a limited representative capacity known as transaction brokers; (5) Single agents may represent either a buyer or a seller, but not both, in a real estate transaction; and (6) Transaction brokers provide a limited form of non-fiduciary representation to a buyer, a seller, or both in a real estate transaction.

1 2 3 4

Section 5. [Scope of Coverage.] The authorized brokerage relationships described in Section 7 apply in all brokerage activities as defined in Section 2(1) of this Act. The disclosure requirements of Sections 6 and 7 apply only to residential sales as defined in Section 6.

1 2 3 4 5

Section 6. [Notice of Nonrepresentation.] (a) Applicability. (1) Residential sales. The real estate licensee disclosure requirements of this Section and Section 7 apply to all residential sales. As used in this Section, the term Â&#x201C;residential salesÂ&#x201D; means the sale of improved

12 - The Council of State Governments

Brokerage Real Estate Disclosure 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49

residential property of [four (4)] units or fewer, the sale of unimproved residential property intended for use of [four (4)] units or less, or the sale of agricultural property of [ten (10)] acres or less. (2) Disclosure limitations. The real estate licensee disclosure requirements of this Section and Section 7 do not apply to: nonresidential transactions; the rental or leasing of real property, unless an option to purchase all or a portion of the property improved with [four (4)] or less residential units is given; auctions; appraisals; and dispositions of any interest in business enterprises or business opportunities, except for property with [four (4)] or less residential units. (b) Notice Requirement. Unless otherwise exempted by this section, all real estate licensees are required to provide to any potential seller or buyer at first contact the notice of nonrepresentation as outlined in Subsection (c), except in situations where a licensee knows that the potential seller or buyer is represented by a single agent or a transaction broker. If first contact between a licensee and a customer occurs during the course of a telephone conversation or any other communication in which the licensee is unable to provide the required notice of nonrepresentation, the licensee shall provide an oral notice and thereafter provide the required notice of nonrepresentation at the time of the first face-to-face contact, execution of a brokerage relationship agreement, or execution of a contractual agreement for purchase and sale, whichever occurs first. (c) Contents of Notice. (1) Required information. The notice required under Subsection (b) must contain the following information: NOTICE OF NONREPRESENTATION [STATE] LAW REQUIRES THAT REAL ESTATE LICENSEES PROVIDE THIS NOTICE AT FIRST CONTACT TO ALL POTENTIAL SELLERS AND BUYERS OF REAL ESTATE. You are hereby notified that ____________________ (insert name of brokerage firm) and I do not represent you in any capacity. You should not assume that any real estate broker or salesperson represents you unless you agree to engage a real estate licensee in an authorized brokerage relationship, either as a single agent or as a transaction broker. You are advised not to disclose any information you want to be held in confidence until you make a decision on representation. Your signature below acknowledges receipt of this form and does not establish a brokerage relationship. Suggested State Legislation - 13

Brokerage Real Estate Disclosure 50 51 52 53 54 55 56 57 58 59 60 61 62 63

(2) Required format. The notice required under Subsection (b) must be printed as a separate and distinct form on paper no smaller than [8 1 /2 inches by 11 inches.] Nothing may be added to the form except a brokerage firm logo containing only the firm name, address, and relevant phone numbers. form title and first sentence are to be in bold typeface of no less than [16-point] type. The remainder of the form must be of [12point type] or larger.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

Section 7. [Authorized Brokerage Relationships; Required Disclosures.] (a) Authorized Brokerage Relationships. A real estate licensee in this state may enter into a brokerage relationship as either a single agent or as a transaction broker with potential buyers and sellers. A real estate licensee may not operate as a disclosed or undisclosed dual agent. As used in this section, the term dual agent means a broker who represents as a fiduciary both the prospective buyer and the prospective seller in a real estate transaction. Once a brokerage relationship is established, this section does not prevent a licensee from changing from one brokerage relationship to the other as long as the buyer or the seller, or both, gives consent as required by this Act before the change and the appropriate disclosure of duties as provided in this section is made to the buyer or seller. This section does not require a customer to enter into a brokerage relationship with any real estate licensee. (b) Transaction Broker Relationship. (1) Transaction broker - duties of limited representation. A transaction broker provides a limited form of representation to a buyer, a seller, or both in a real estate transaction but does not represent either in a fiduciary capacity or as a single agent. The duties of the real estate licensee in this limited form of representation include the following: Dealing honestly and fairly; Accounting for all funds; Using skill, care, and diligence in the transaction; Disclosing all known facts that materially affect the value of real property and are not readily observable to the buyer; Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing; Limited confidentiality, unless waived in writing by a party. This limited confidentiality will prevent disclosure that the seller will accept a

Date _____________ (Signature Optional) _________________________ (Signature Optional) _________________________

14 - The Council of State Governments

Brokerage Real Estate Disclosure 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73

price less than the asking or listed price, that the buyer will pay a price greater than the price submitted in a written offer, of the motivation of any party for selling or buying property, that a seller or buyer will agree to financing terms other than those offered, or of any other information requested by a party to remain confidential; and Any additional duties that are mutually agreed to with a party. (2) Disclosure requirements. Duties of a transaction broker must be fully described and disclosed in writing to a buyer or seller either as a separate and distinct disclosure document or included as part of another document such as a listing agreement or agreement for representation. The disclosure must be made before, or at the time of, entering into a listing agreement or an agreement for representation. When incorporated into other documents the required notice must be of the same size type, or larger, as other provisions of the document and must be conspicuous in its placement so as to advise customers of the duties of limited representation, except that the first sentence must be printed in uppercase and bold type. (3) Contents of disclosure. The required notice must include the following information in the following form: [STATE] LAW REQUIRES THAT REAL ESTATE LICENSEES OPERATING AS TRANSACTION BROKERS DISCLOSE TO BUYERS AND SELLERS THEIR ROLE AND DUTIES IN PROVIDING A LIMITED FORM OF REPRESENTATION. As a transaction broker, _________________________ (insert name of Real Estate Firm and its Associates), provides to you a limited form of representation that includes the following duties: Dealing honestly and fairly; Accounting for all funds; Using skill, care, and diligence in the transaction; Disclosing all known facts that materially affect the value of real property and are not readily observable to the buyer; Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing; Limited confidentiality, unless waived in writing by a party. This limited confidentiality will prevent disclosure that the seller will accept a price less than the asking or listed price, that the buyer will pay a price greater than the price submitted in a written offer, of the motivation of any party for selling or buying property, that a seller or buyer will agree to financing terms other than those offered, or of any other information requested by a party to remain confidential; and Any additional duties that are entered into by this or by Suggested State Legislation - 15

Brokerage Real Estate Disclosure 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117

separate written agreement. Limited representation means that a buyer or seller is not responsible for the acts of the licensee. Additionally, parties are giving up their rights to the undivided loyalty of the licensee. This aspect of limited representation allows a licensee to facilitate a real estate transaction by assisting both the buyer and the seller, but a licensee will not work to represent one party to the detriment of the other party. Date ___________ Signature _____________________ Signature _____________________ (c) Single Agent Relationship. (1) Single agent - duties. The duties of a real estate licensee owed to a buyer or seller who engages the real estate licensee as a single agent include the following: Dealing honestly and fairly; Loyalty; Confidentiality; Obedience; Full disclosure; Accounting for all funds; Skill, care, and diligence in the transaction; and Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing. (2) Disclosure requirements. (i) Single agent disclosure. Duties of a single agent must be fully described and disclosed in writing to a buyer or seller either as a separate and distinct disclosure document or included as part of another document such as a listing agreement or other agreement for representation. The disclosure must be made before, or at the time of, entering into a listing agreement or an agreement for representation. When incorporated into other documents the required notice must be of the same size type, or larger, as other provisions of the document and must be conspicuous in its placement so as to advise customers of the duties of a single agent, except that the first sentence of the information must be printed in uppercase and bold type. (ii) Transition to transaction broker disclosure. A single agent relationship may be changed to a transaction broker relationship at any time during the relationship between an agent and principal, provided the agent gives the disclosure required under this Act and the principal

16 - The Council of State Governments

Brokerage Real Estate Disclosure 118 119 120 121 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162

gives to the agent consent as required under this Act before a change in relationship. This disclosure must be in writing to the principal either as a separate and distinct document or included as part of other documents such as a listing agreement or other agreements for representation. When incorporated into other documents the required notice must be of the same size type, or larger, as other provisions of the document and must be conspicuous in its placement so as to advise customers of the duties of limited representation, except that the first sentence must be printed in uppercase and bold type. (3) Contents of disclosure. (i) Single agent duties disclosure. The notice required must include the following information in the following form: [STATE] LAW REQUIRES THAT REAL ESTATE LICENSEES OPERATING AS SINGLE AGENTS DISCLOSE TO BUYERS AND SELLERS THEIR DUTIES. As a single agent, ___________________ (insert name of Real Estate Entity and its Associates) owe to you the following duties: Dealing honestly and fairly; Loyalty; Confidentiality; Obedience; Full disclosure; Accounting for all funds; Skill, care, and diligence in the transaction; and Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing. Date _____________ Signature _____________________ Signature _____________________ (ii) Transition disclosure. The notice required must include the following information in the following form as well as the other applicable parts of this Act: [STATE] LAW ALLOWS REAL ESTATE LICENSEES WHO REPRESENT A BUYER OR SELLER AS A SINGLE AGENT TO CHANGE FROM A SINGLE AGENT RELATIONSHIP TO A TRANSACTION BROKERAGE RELATIONSHIP IN ORDER FOR THE LICENSEE TO ASSuggested State Legislation - 17

Brokerage Real Estate Disclosure 163 164 165 166 167 168 169 170 171 172 1 2 3 4 5 6 7 1 2 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

SIST BOTH PARTIES IN A REAL ESTATE TRANSACTION BY PROVIDING A LIMITED FORM OF REPRESENTATION TO BOTH THE BUYER AND THE SELLER. THIS CHANGE IN RELATIONSHIP CANNOT OCCUR WITHOUT YOUR PRIOR WRITTEN CONSENT. I agree that my agent may assume the role and duties of a transaction broker. [must be initialed or signed] Date _____________ Signature _____________________ Section 8. [No Brokerage Relationship - Duties.] A real estate licensee owes to a customer with whom the licensee has no brokerage relationship the following duties: Dealing honestly and fairly; Disclosing all known facts that materially affect the value of the property which are not readily observable to the buyer; and Accounting for all funds entrusted to the licensee. Section 9. [Rules.] The Commission may adopt rules establishing disciplinary guidelines, notices of noncompliance, and citations for violations of Sections 6 and 7 of this Act. Section 10. [Brokerage Business Records.] Each broker shall keep and make available to the department such books, accounts, and records as will enable the department to determine whether such broker is in compliance with the provisions of this Act. Each broker shall preserve at least one legible copy of all books, accounts, and records pertaining to his real estate brokerage business for at least [five (5)] years from the date of receipt of any money, fund, deposit, check, or draft entrusted to the broker or, in the event no funds are entrusted to the broker, for at least [five (5)] years from the date of execution by any party of any listing agreement, offer to purchase, rental property management agreement, rental or lease agreement, or any other written or verbal agreement which engages the services of the broker. If any brokerage record has been the subject of or has served as evidence for litigation, relevant books, accounts, and records must be retained for at least [two (2)] years after the conclusion of the civil action or the conclusion of any appellate proceeding, whichever is later, but in no case less than a total of [five (5)] years as set above. Disclosure documents required by this Act shall be retained by the real estate licensee in all transactions that result in a written contract to purchase and sell real property.

1 18 - The Council of State Governments

Brokerage Real Estate Disclosure 2 3 1 1 1

Section 11. [Exemptions.] This Act does not apply to auctions conducted as a part of the sale of real property by a real estate broker, as defined in [insert citation.] Section 12. [Severability.] [Insert severability clause.] Section 13. [Repealer.] [Insert repealer clause.] Section 14. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 19

Business Coordination In March 1996, the governor of Florida created the state Single Business Identifier Interagency Workgroup as a subgroup of a Task Force on Paperwork Reduction. The Working Group was charged with exploring the development of a single business identification numbering system for use by state agencies with the intended goal of reducing the paperwork burden on the stateÂ&#x2019;s business and governmental entities. This Act is based on a subsequent Florida law to codify some of the recommendations of the report from the Working Group. According to the Working Group, there were twelve or more state agencies which required licenses from or regulated businesses. Research indicates that a typical business owner spends up to eight hours per month filling out paperwork for permits, taxes, labor, and worker-safety reports to the state. In addition, businesses must report the same information to as many as five different state agencies and report the same information to the same state agency repeatedly. This Act directs the Department of State to create a master business index in which each business is assigned a unique single business identifier number (SBIN) for interagency use. The master business index is a database which indexes all business entity records maintained by any state government agency. Each agency that registers, licenses, or regulates business entities is to utilize the SBIN so that registration or license information may be directly retrieved by the use of the SBIN. Historically, state law required the use of the federal employerÂ&#x2019;s identification number (FEIN) by each state agency which registers or licenses corporations, partnerships or other business entities. The Task Force reviewed the use of the FEIN, but the Task Force determined that the FEIN is unsatisfactory for accomplishing the goal because it is not necessarily a unique number; it is not created or managed within the control of the state; and not all businesses register for a FEIN. This Act repeals the component of state law which requires the use of the Federal Employer Identifier Number by state agencies which register or license business entities. The Act also directs the secretary of state to conduct a study assessing the need for unified reporting and consolidated licensing; and to prepare recommendations for the Legislature based on the findings of the study. Submitted as: Florida CH 97-15 (HB 399) Enacted into law, 1997. 20 - The Council of State Governments

Business Coordination

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Business Coordination Act.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Section 2. [Legislative Findings and Intent.] (1) The Legislature finds that: (a) As documented by the [Single Business Identifier Interagency Task Force,] state government places a heavy burden on the business community of this state through the requirement to obtain and maintain numerous licenses, permits, and registrations. (b) While such requirements are necessary to ensure the public safety and welfare, present methods for the business community to meet such obligations, as prescribed by law and administered and enforced by state agencies, are cumbersome and place an undue hardship on business entities in this state. (c) The potential exists for the state to more easily identify and eliminate duplicative or outdated licensing requirements and thereby reduce its cost of operation without jeopardizing the public safety or welfare. (2) It is the intent of this Act to establish a master business index within the [Department of State] and to facilitate a reporting mechanism which consolidates and coordinates business entity licensing and reporting requirements whenever possible.

1 2 3 4 5 6 7 8 9 10 11 12 13

Section 3. [Definitions.] As used in this Act: (1) Business entity means any form of corporation, partnership, association, cooperative, joint venture, business trust, or sole proprietorship that conducts business in this state. (2) Department means the [Department of State.] (3) Master business index means that database maintained by the [department] which indexes all business entity records maintained by any state government agency. (4) Single business identifier means the unique record number assigned to a business entity by the [department] in compliance with the provisions of this Act. (5) State agency means any state government agency, department, or commission which has jurisdiction over business entities.

1 2 3 4

Section 4. [Single Business Identifier.] (1) The [department] shall create a master business index, using as an initial base the commercial regulation and registration program databases the [department] currently maintains. Each business entity shall Suggested State Legislation - 21

Business Coordination 5 6 7 8 9 10 11 12 13

be assigned a unique single business identifier for interagency use. (2) The [department] is authorized to take the actions it deems necessary to integrate all non-business entity or commercial registrations it maintains into the Master Business Index such that all registrations maintained for a business entity are reflected in the index in a consolidated manner. (3) The [department] is authorized to take the actions it deems practical to consolidate its various renewal or annual mailings, to include the altering of specified mailing dates and filing deadlines.

1 2

Section 5. [Custodian.] The [Secretary of State] is hereby designated the custodian of the Master Business Index.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Section 6. [Feasibility Study - Uniform Business Report.] (1) The [Secretary of State] shall conduct a study of the technical feasibility of implementing a uniform business report for use throughout selected state agencies in the consolidated licensing, registration or renewal of business entity filings in this state. Additionally, the study shall address the technical feasibility of each state agency that registers or licenses business entities and maintains license records on such entities to: (a) Include the Single Business Identifier, assigned by the [Department of State] and maintained in the Master Business Index, in its records such that registration or license information may be directly retrieved by use of the Single Business Identifier number. (b) Coordinate its data records creation with the [Department of State] so as to obtain a Single Business Identifier for all records it maintains or creates. (2) Based on the study, the [Secretary of State] shall develop legislative proposals for submission prior to the [1998 Regular Legislative Session,] which implement the intent of this Act.

Section 7. [Severability.] [Insert severability clause.]

Section 8. [Repealer.] [Insert repealer clause.]

Section 9. [Effective Date.] [Insert effective date.]

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Chemical Castration for Sex Offenders (Note) Controlling the behavior of sex offenders who are released from prison is a major task for state criminal justice officials. Treating sex offenders with medroxyprogesterone acetate (MPA) to reduce their sex drive appears to be a new trend among the states. Commonly referred to as Â&#x201C;chemical castration,Â&#x201D; at least five states permitted such treatment as of June 1998; California, Florida, Georgia, Louisiana and Montana. Chapter 596 of the 1996 laws of California provides that anyone who is convicted the first time of certain sex offenses, where the victim is under 13 years old, may be required to receive medroxyprogesterone acetate treatment upon parole. Such treatment is at the discretion of the court. The law requires this treatment upon a second conviction. A parolee begins the treatments one week prior to their release on parole. The treatments continue until the state corrections department demonstrates to the state board of prison terms that the treatment is no longer necessary. Florida law 97-184 authorizes a court to sentence a defendant to be treated with medroxyprogesterone acetate (MPA) if the defendant is convicted of sexual battery. It provides for mandatory treatment with MPA upon a subsequent conviction of sexual battery. The treatment can last for a specified time or for the entire life of the criminal. The law also permits voluntary physical castration for defendants as an alternative penalty under specified circumstances. Georgia HB 211 authorizes people who are convicted of certain child molestation offenses to undergo chemical hormone treatments of medroxyprogesterone acetate as a condition of eligibility for probation and parole. Under this 1997 law, treatment recipients are required to undergo a psychiatric evaluation by a qualified mental health professional and to have counseling during treatment, at the expense of the recipient of the treatment. The program is to be administered through the state board of pardons and parole, and the treatments can be obtained from private or public licensed providers. Immunity from civil and criminal liability is granted to physicians who act in good faith in administering the treatments. The law requires that potential recipients of the hormonal treatment be fully informed of the side-effects and give written consent prior to beginning the treatment. Louisiana Act 746 of 1997 enables medroxyprogesterone acetate to be part of the treatment plan of sex offenders whose victims were under 12 years old or who have been convicted two or more times for sex offenses and are eligible for probation or parole. Treatment starts six weeks prior to release and continues until it is determined that treatment is no longer necessary. Suggested State Legislation - 23

Chemical Castration for Sex Offenders (Note) CH 341 of the 1997 laws of Montana inserts clauses into state law that requires people who are convicted of sexual offenses to undergo medroxyprogestone acetate treatment or its chemical equivalent. The law says that the time period for treatment cannot exceed the period of supervision of the person. Interested readers can contact the states to get a copy of the laws that are highlighted in this Â&#x201C;Note.Â&#x201D;

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Cloning The appearance of Dolly, a cloned sheep, prompted worldwide debate about cloning, particularly as it relates to human beings. This debate is ongoing at both the federal and state levels of government. For example, between 1997 and 1998, at least 18 states were reported as introducing legislation to ban cloning human beings or using cloned cells for research: Alabama, California, Delaware, Florida, Georgia, Hawaii, Illinois, Michigan, New Hampshire, New Jersey, New York, Oregon, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia and Wisconsin. Of these, three passed laws; California, Michigan and Rhode Island. Likewise, between 1997 and 1998, at least eight bills had been introduced in Congress to prohibit cloning human beings or to prohibit using federal funds to research cloning humans: HR 922, HR 923, S 368, S 1574, S 1601, S 1599, S 1611 and S 1602. However, as of June 1998, although all but one of these bills (S 1601) were technically still viable, none had passed their respective chambers, and their passage in the future seemed unlikely. At the state level, California SB 1344 (CH 688, Laws of 1997): Prohibits any person from cloning a human being; Prohibits any person from purchasing or selling an ovum, zygote, embryo, or fetus for the purpose of cloning a human being; Authorizes the state department of health services to levy administrative penalties on violators of up to $250,000 for individuals, and up to $1,000,000 for corporations, firms, clinics, hospitals, laboratories, or research facilities; Defines cloning as inserting the nucleus from a human cell into an egg cell from which the nucleus has been removed, for the purpose of cloning; States that a violation of the above provisions constitutes unprofessional conduct under the state Medical Practice Act; Requires business licenses issued by cities or counties, as specified, to be revoked for violations of the above provisions; and Sunsets the above provisions on January 1, 2003. The California law also: Calls for a five-year moratorium on the cloning of an entire human being in order to evaluate the medical, ethical and social implications; Says that the moratorium is not intended to apply to cloning of human cells, human tissue, or human organs that would not result in the replication of an entire human being; and Specifies that during the moratorium, the state director of health services be called upon to establish a panel to review this issue and advise the legislature and governor. Suggested State Legislation - 25

Cloning New Jersey s AB 329 makes cloning a human being a crime and provides that a person s genetic information is their property. This bill was pending in committee as of June 1998. The legislation that is highlighted in this volume is based on a 1997 Rhode Island law that prohibits cloning a human being. It says that no person or entity can use somatic cell nuclear transfer for the purpose of initiating or attempting to initiate a pregnancy nor shall any person create genetically identical human beings by dividing a blastocyst, zygote or embryo. The Act also establishes fines for violating its provisions. Generally, the fines apply to companies, research labs and their employees. Submitted as: Rhode Island HB 7123 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as An Act Concerning Human Cloning.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Section 2. [Declaration of Intent and Purpose.] Whereas, recent medical and technological advances have had tremendous benefit to patients, and society as a whole, and biomedical research for the purpose of scientific investigation of disease or cure of a disease or illness should be preserved and protected and not be impeded by regulations involving the cloning of an entire human being; and Whereas, molecular biology, involving human cells, genes, tissues, and organs, has been used to meet medical needs globally for [twenty (20)] years, and has proved a powerful tool in the search for cures, leading to effective medicines to treat cystic fibrosis, diabetes, heart attack, stroke, hemophilia, and HIV/AIDS; The purpose of this legislation is to place a ban on the creation of a human being through division of a blastocyst, zygote, or embryo or somatic cell nuclear transfer, and to protect the citizens of the state from potential abuse deriving from cloning technologies. This ban is not intended to apply to the cloning of human cells, genes, tissues, or organs that would not result in the replication of an entire human being. Nor is this ban intended to apply to in-vitro fertilization, the administration of fertility enhancing drugs, or other medical procedures used to assist a woman in becoming or remaining pregnant, so long as that procedure is not specifically intended to result in the gestation or birth of a child who is genetically identical to another

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Cloning 22

conceptus, embryo, fetus, or human being, living or dead.

1 2 3 4 5

Section 3. [Cloning of Human Beings Prohibited.] No person or entity shall utilize somatic cell nuclear transfer for the purpose of initiating or attempting to initiate a human pregnancy nor shall any person create genetically identical human beings by dividing a blastocyst, zygote, or embryo.

1 2 3 4 5 6 7 8 9

Section 4. [Definitions.] (a) Somatic cell nuclear transfer means transferring the nucleus of a human somatic cell into an oocyte from which the nucleus has been removed; (b) Somatic cell means any cell of a conceptus, embryo, fetus, child, or adult not biologically determined to become a germ cell; (c) Oocyte means the female germ cell, the egg; (d) Nucleus means the cell structure that houses the chromosomes, and thus the genes, and;

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Section 5. [Protected Research and Practices.] (a) Nothing in this Act shall be construed to restrict areas of biomedical, microbiological, and agricultural research or practices not expressly prohibited in this section, including research or practices that involve the use of: (1) somatic cell nuclear transfer or other cloning technologies to clone molecules, DNA, cells, and tissues; or (2) mitochondrial, cytoplasmic, or gene therapy; or (3) somatic cell nuclear transfer techniques to create animals. (b) Nothing in this Act shall be construed to prohibit: (1) in-vitro fertilization, the administration of fertility-enhancing drugs, or other medical procedures used to assist a woman in becoming or remaining pregnant, so long as that pregnancy is not specifically intended to result in the production of a child who is genetically identical to another human being, living or dead; (2) any activity or procedure that results, directly or indirectly in [two (2)] or more natural identical twins.

1 2 3 4 5 6 7 8

Section 6. [Penalties.] For violations of this Act, the [director] of the [Department of Health] may, after appropriate notice and opportunity for hearing, by order, levy administrative penalties as follows: (1) If the violator is a corporation, firm, clinic, hospital, laboratory, or research facility, by a civil penalty of not more than [one million (1,000,000)] dollars, or the applicable amount under subsection (3), whichever is greater. (2) If the violator is an individual or an employee of the firm, Suggested State Legislation - 27

Cloning 9 10 11 12 13 14 15 16 17 18 19

clinic, hospital, laboratory, or research facility acting without the authorization of the firm, clinic, hospital, or research facility, by a civil penalty of not more than [two hundred fifty thousand (250,000)] dollars or the applicable amount under subsection 3, whichever is greater. (3) If any violator derives pecuniary gain from a violation of this Act, the violator may be assessed a civil penalty of not more than an amount equal to the amount of the gross gain multiplied by [two (2).] (4) The administrative penalties provided in this section shall be paid to the general fund. (5) Nothing in this Act shall be construed to give any person a private right of action.

Section 7. [Severability.] [Insert severability clause.]

Section 8. [Effective Date.] [Insert effective date.]

1 2

Section 9. [Reauthorization/Sunset Clause.] The prohibition in this Act shall expire [five (5)] years from the effective date.

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Conditional Release of Sex Offenders The 1991 Suggested State Legislation contains a Sex Offender Act which is based on Minnesota law. That Act includes comments about sex offender legislation in Missouri, Vermont and Washington state. The Act and comments generally address sentencing sex offenders and psychotherapy for sex offenders. This legislation, which is based on Florida law, addresses restricting the activity of sex offenders when they are out of prison. This Act: Revises treatment protocols for sex offenders; Prohibits sex offenders from possessing telephone, electronic media, or computer programs or services that are relevant to their behavior pattern; Requires sex offenders to submit to certain warrant-less searches; Requires sex offenders to undergo polygraph examinations under certain conditions; Requires sex offenders to maintain driving logs and not drive a motor vehicle alone without approval from law enforcement authorities; Prohibits sex offenders from obtaining or using a post office box without approval from law enforcement authorities; Clarifies the definitions of sex offender probation and sex offender community control; Imposes a curfew on sex offenders; Establishes HIV-testing criteria for sex offenders; and Requires sex offenders to submit to electronic monitoring. Submitted as: Florida CH 97-308 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Conditional Release Program Act.

1 2 3 4

Section 2. [Conditional Release Program.] (1) Any inmate who: (a) Is convicted of a crime committed on or after [October 1, 1988,] and before [January 1, 1994,] and any inmate who is convicted of a crime Suggested State Legislation - 29

Conditional Release of Sex Offenders 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48

committed on or after [January 1, 1994,] which crime is or was contained in [insert citation,] and who has served at least [one (1)] prior felony commitment at a state or federal correctional institution; (b) Is sentenced as a habitual or violent habitual offender or a violent career criminal pursuant to [insert citation;] or (c) Is found to be a sexual predator under [insert citation,] shall, upon reaching the tentative release date or provisional release date, whichever is earlier, as established by the [Department of Corrections,] be released under supervision subject to specified terms and conditions, including payment of the cost of supervision pursuant to [insert citation.] Such supervision shall be applicable to all sentences within the overall term of sentences if an inmateÂ&#x2019;s overall term of sentences includes [one (1)] or more sentences that are eligible for conditional release supervision as provided herein. Effective [insert date] and applicable for offenses committed on or after that date, the [commission] may require, as a condition of conditional release, that the releasee make payment of the debt due and owing to a county or municipal detention facility under [insert citation] for medical care, treatment, hospitalization, or transportation received by the releasee while in that detention facility. The [commission,] in determining whether to order such repayment and the amount of such repayment, shall consider the amount of the debt, whether there was any fault of the institution for the medical expenses incurred, the financial resources of the releasee, the present and potential future financial needs and earning ability of the releasee, and dependents, and other appropriate factors. If an inmate has received a term of probation or community control supervision to be served after release from incarceration, the period of probation or community control must be substituted for the conditional release supervision. A panel of no fewer than [two (2)] [commissioners] shall establish the terms and conditions of any such release. If the offense was a controlled substance violation, the conditions shall include a requirement that the offender submit to random substance abuse testing intermittently throughout the term of conditional release supervision, upon the direction of the correctional probation officer as defined in [insert citation.] The [commission] shall also determine whether the terms and conditions of such release have been violated and whether such violation warrants revocation of the conditional release. (2) As part of the conditional release process, the [commission] shall determine: (a) The amount of reparation or restitution. (b) The consequences of the offense as reported by the aggrieved party. (c) The aggrieved partyÂ&#x2019;s fear of the inmate or concerns about the release of the inmate. (3) The [commission] shall provide to the aggrieved party informa-

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Conditional Release of Sex Offenders 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92

tion regarding the manner in which notice of any developments concerning the status of the inmate during the term of conditional release may be requested. (4) Within [one hundred eighty (180)] days prior to the tentative release date or provisional release date, whichever is earlier, a representative of the [commission] shall interview the inmate. The [commission] representative shall review the inmate s program participation, disciplinary record, psychological and medical records, and any other information pertinent to the impending release. A [commission] representative shall conduct a personal interview with the inmate for the purpose of determining the details of the inmate s release plan, including his planned residence and employment. The results of the interview must be forwarded to the [commission] in writing. (5) Upon receipt of notice as required under [insert citation,] the [commission] shall conduct a review of the inmate s record for the purpose of establishing the terms and conditions of the conditional release. The [commission] may impose any special conditions it considers warranted from its review of the record. If the [commission] determines that the inmate is eligible for release under [insert citation,] the [commission] shall enter an order establishing the length of supervision and the conditions attendant thereto. However, an inmate who has been convicted of a violation of [insert citation] or found by the court to be a sexual predator is subject to the maximum level of supervision provided, with the mandatory conditions as required in subsection (6), and that supervision shall continue through the end of the releasee s original court-imposed sentence. The length of supervision must not exceed the maximum penalty imposed by the court. (6) (a) Any inmate who is convicted of a crime committed on or after [October 1, 1995,] or who has been previously convicted of a crime committed on or after [October 1, 1995,] in violation of [insert citation,] and is subject to conditional release supervision, shall have, in addition to any other conditions imposed, the following special conditions imposed by the [commission:] (i) A mandatory curfew from [10 p.m. to 6 a.m.] The court may designate another [eight (8)] hour period if the offender s employment precludes the above specified time, and such alternative is recommended by the [Department of Corrections.] If the court determines that imposing a curfew would endanger the victim, the court may consider alternative sanctions. (ii) If the victim was under age [eighteen (18)], a prohibition on living within [one thousand (1,000)] feet of a school, day care center, park, playground, or other place where children regularly congregate. (iii) Active participation in and successful completion of a sex offender treatment program with therapists specifically trained to treat Suggested State Legislation - 31

Conditional Release of Sex Offenders 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136

sex offenders, at the releasee s own expense. If a specially trained therapist is not available within a [fifty (50)] mile radius of the releasee s residence, the offender shall participate in other appropriate therapy. (iv) A prohibition on any contact with the victim, directly or indirectly, including through a third person, unless approved by the victim, the offender s therapist, and the sentencing court. (v) If the victim was under age [eighteen (18),] a prohibition, until successful completion of a sex offender treatment program, on unsupervised contact with a child under the age of [eighteen (18),] unless authorized by the [commission] without another adult present who is responsible for the child s welfare, has been advised of the crime, and is approved by the [commission.] (vi) If the victim was under age [eighteen (18),] prohibition on working for pay or as a volunteer at any school, day care center, park, playground, or other place where children regularly congregate, as prescribed by the [commission.] (vii) Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender s deviant behavior pattern. (viii) A requirement that the releasee must submit [two (2)] specimens of blood to the [Department of Law Enforcement] to be registered with the DNA database. (ix) A requirement that the releasee make restitution to the victim, as determined by the sentencing court or the [commission,] for all necessary medical and related professional services relating to physical, psychiatric, and psychological care. (x) Submission to a warrantless search by the community control or probation officer of the probationer s or community controllee s person, residence, or vehicle. (b) For a releasee whose crime was committed on or after [October 1, 1997,] in violation of [insert citation,] and who is subject to conditional release supervision, in addition to any other provision of this subsection, the [commission] shall impose the following additional conditions of conditional release supervision: (i) As part of a treatment program, participation in a minimum of [one (1)] annual polygraph examination to obtain information necessary for risk management and treatment and to reduce the sex offender s denial mechanisms. The polygraph examination must be conducted by a polygrapher trained specifically in the use of the polygraph for the monitoring of sex offenders, where available, and at the expense of the sex offender. The results of the polygraph examination shall not be

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Conditional Release of Sex Offenders 137 138 139 140 141 142 143 144 145 146 147 148 149

used as evidence in a hearing to prove that a violation of supervision has occurred. (ii) Maintenance of a driving log and a prohibition against driving a motor vehicle alone without the prior approval of the supervising officer. (iii) A prohibition against obtaining or using a post office box without the prior approval of the supervising officer. (iv) If there was sexual contact, a submission to, at the probationer s or community controllee s expense, an HIV test with the results to be released to the victim or the victim s parent or guardian. (vi) Electronic monitoring when deemed necessary by the community control or probation officer and his or her supervisor, and ordered by the court at the recommendation of the [Department of Corrections.]

1 2 3 4 5 6 7 8 9 10 11

Section 3. [Definitions.] As used in this Act, the term sex offender probation or sex offender community control means a form of intensive supervision, with or without electronic monitoring, which emphasizes treatment and supervision of a sex offender in accordance with an individualized treatment plan administered by an officer who has a restricted caseload and specialized training. An officer who supervises an offender placed on sex offender probation or sex offender community control must meet as necessary with a treatment provider and polygraph examiner to develop and implement the supervision and treatment plan, if a treatment provider and polygraph examiner specially trained in the treatment and monitoring of sex offenders are reasonably available.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Section 4. [Terms and Conditions of Probation or Community Control.] (1) (a) Effective for probationers or community controllees whose crime was committed on or after [October 1, 1995,] and who are placed under supervision for violation of [insert citation,] the court must impose the following conditions in addition to all other standard and special conditions imposed: (i) A mandatory curfew from [10 p.m. to 6 a.m.] The court may designate another [eight (8)] hour period if the offender s employment precludes the above specified time, and such alternative is recommended by the [Department of Corrections.] If the court determines that imposing a curfew would endanger the victim, the court may consider alternative sanctions. (ii) If the victim was under age [eighteen (18),] a prohibition on living within [one thousand (1,000)] feet of a school, day care center, park, playground, or other place where children regularly congregate, as prescribed by the court. (iii) Active participation in and successful completion of a sex offender treatment program with therapists specifically trained to treat Suggested State Legislation - 33

Conditional Release of Sex Offenders 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62

sex offenders, at the probationer s or community controllee s own expense. If a specially trained therapist is not available within a [fifty (50)] mile radius of the probationer s or community controllee s residence, the offender shall participate in other appropriate therapy. (iv) A prohibition on any contact with the victim, directly or indirectly, including through a third person, unless approved by the victim, the offender s therapist, and the sentencing court. (v) If the victim was under age [eighteen (18),] a prohibition, until successful completion of a sex offender treatment program, on unsupervised contact with a child under the age of [eighteen (18),] unless authorized by the sentencing court without another adult present who is responsible for the child s welfare, has been advised of the crime, and is approved by the sentencing court. (vi) If the victim was under age [eighteen (18),] a prohibition on working for pay or as a volunteer at any school, day care center, park, playground, or other place where children regularly congregate. (vii) Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender s deviant behavior pattern. (viii) A requirement that the probationer or community controllee must submit [two (2)] specimens of blood to the [Department of Law Enforcement] to be registered with the DNA data bank. (ix) A requirement that the probationer or community controllee make restitution to the victim, as ordered by the court under [insert citation,] for all necessary medical and related professional services relating to physical, psychiatric, and psychological care. (x) Submission to a warrantless search by the community control or probation officer of the probationer s or community controllee s person, residence, or vehicle. (b) Effective for a probationer or community controllee whose crime was committed on or after [October 1, 1997,] and who is placed on sex offender probation for a violation of [insert citation,] in addition to any other provision of this subsection, the court must impose the following conditions of probation or community control: (i) As part of a treatment program, participation at least annually in polygraph examinations to obtain information necessary for risk management and treatment and to reduce the sex offender s denial mechanisms. A polygraph examination must be conducted by a polygrapher trained specifically in the use of the polygraph for the monitoring of sex offenders, where available, and shall be paid by the sex offender. The results of the polygraph examination shall not be used as evidence in court to prove that

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Conditional Release of Sex Offenders 63 64 65 66 67 68 69 70 71 72 73 74

a violation of community supervision has occurred. (ii) Maintenance of a driving log and a prohibition against driving a motor vehicle alone without the prior approval of the supervising officer. (iii) A prohibition against obtaining or using a post office box without the prior approval of the supervising officer. (iv) If there was sexual contact, a submission to, at the probationer s or community controllee s expense, an HIV test with the results to be released to the victim and/or the victim s parent or guardian. (v) Electronic monitoring when deemed necessary by the community control or probation officer and his or her supervisor, and ordered by the court at the recommendation of the [Department of Corrections.]

Section 5. [Severability.] [Insert severability clause.]

Section 6. [Repealer.] [Insert repealer clause.]

Section 7. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 35

Confidentiality of Records of Genetic Tests The purpose of this Act is to protect the confidentiality of records of genetic tests. It is based on and incorporates the language from a 1996 New York law and 1997 amendments to that law. This Act deems individuals to have an exclusive property right in the records of such tests of their genetic material, particularly against unauthorized release. It requires the informed consent of the subjects of such tests with specified exceptions in the forensic context. Exceptions to the informed consent requirement are provided in certain criminal law and forensic contexts. Penalties are imposed for testing without valid consent or revealing, listing or possessing confidential genetic information without authorization. Negligent disclosures or testing without informed consent are classified as violations with the penalty of a civil fine of not more than $1,000 dollars. Willful disclosing or testing without informed consent are classified as misdemeanors with a penalty or a fine of not more than $5,000 dollars or imprisonment for up to 90 days. The state Health Commissioner is empowered to identify genetic diseases for which such strongly predictive tests are available. The Act enables people to sign waivers to permit samples of their genetic tests to be used for research. It establishes provisions for performing genetic testing on newborns and also on people without their consent when the tests are used for research. The Act also sets protocols for storing and destroying genetic samples. A Minnesota law on genetic discrimination is in the 1997 SSL volume. That law deals primarily with how genetic tests affect insurance eligibility. Previous Suggested State Legislation entitled Genetic Screening Prohibition Act (Statement) 1995, and Genetic Screening in the Workplace (Note), deal mainly with employers using genetic information to screen potential employees or withhold benefits from employees. This Act focuses on what happens to records of people who take genetic tests, regardless of the reasons why they are tested. Submitted as: New York CH 497, Laws of 1996 (S 4293 - D) Enacted into law, 1996. and

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Confidentiality of Records of Genetic Tests New York CH 645, Laws of 1997 (S 03286 - B) Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Genetic Research and Testing Act.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

Section 2. [Confidentiality of Records of Genetic Tests.] (1) As used in this section, the following terms shall have the following meanings: (a) genetic test shall mean any laboratory test of human DNA, chromosomes, genes, or gene products to diagnose the presence of a genetic variation linked to a predisposition to a genetic disease or disability in the individual or the individual s offspring; such term shall also include DNA profile analysis. Genetic test shall not be deemed to include any test of blood or other medically prescribed test in routineuse that has been or may be hereafter found to be associated with a genetic variation, unless conducted purposely to identify such genetic variation. (b) genetic predisposition shall mean the presence of a variation in the composition of the genes of an individual or an individual s family member which is scientifically or medically identifiable and which is determined to be associated with an increased statistical risk of being expressed as either a physical or mental disease or disability in the individual or having offspring with a genetically influenced disease, but which has not resulted in any symptoms of such disease or disorder. (c) biological sample shall mean any material part of the human body or of discharge therefrom known to contain DNA, including but not limited to tissue specimen, blood, or urine. (d) institutional review board shall mean a human research review committee established and approved under the provisions of [insert citation,] or an institutional review board established and approved under the provisions of 45 C.F.R. Part 46 or 42 U.S.C. 30 V-1, for the purpose of reviewing and monitoring research involving human subjects. (2) (a) No person shall perform a genetic test on a biological sample taken from an individual without the prior written informed consent of such individual as provided in paragraph (b) of this subdivision, except as otherwise provided in paragraph (c) of subdivision 2 and by subdivision 9 of this section. (b) Written informed consent to a genetic test shall consist of written authorization that is dated and signed and includes at least the followSuggested State Legislation - 37

Confidentiality of Records of Genetic Tests 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77

ing:

(i) a general description of the test; (ii) a statement of the purpose of the test; (iii) a statement indicating that the individual may wish to obtain professional genetic counseling prior to signing the informed consent. (iv) a statement that a positive test result is an indication that the individual may be predisposed to or have the specific disease or condition tested for and may wish to consider further independent testing, consult their physician or pursue genetic counseling; (v) a general description of each specific disease or condition tested for; (vi) the level of certainty that a positive test result for that disease or condition serves as a predictor of such disease. If no level of certainty has been established, this subparagraph may be disregarded; (vii) the name of the person or categories of persons or organizations to whom the test results may be disclosed; (viii) a statement that no tests other than those authorized shall be performed on the biological sample and that the sample shall be destroyed at the end of the testing process or not more than [sixty (60)] days after the sample was taken, unless a longer period of retention is expressly authorized in the consent; and (ix) the signature of the individual subject of the test or, if that individual lacks the capacity to consent, the signature of the person authorized to consent for such individual. (c) A general waiver, wherein consent is secured for genetic testing without compliance with paragraph (b) of this subdivision, shall not constitute informed consent. Notwithstanding the provisions of this section, for purposes of research conducted in accordance with the provisions of subdivision 9 of this section, a general waiver for the use of samples for research may be granted which would authorize the use of samples for these research purposes. (d) Any further disclosure of genetic test results to persons or organizations not named on the informed consent shall require the further informed consent of the subject of the test. (e) Written consent by an individual for tests to be conducted on a biological sample and to the lawful possession and ownership of such sample by a laboratory shall not be deemed written informed consent for the performance of any genetic test on that sample, except as further provided in subdivision 4 of this section. (f) For medical research purposes, with the approval of an institutional review board and the written informed consent of the subject, samples may be kept for longer than [sixty (60)] days and utilized for scientific research. The requirements of subparagraphs iii, iv and v of paragraph (b) of

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Confidentiality of Records of Genetic Tests 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121

this subdivision may be modified by the institutional review board in case the research protocol does not permit such degree of specificity. (3) (a) All records, findings and results of any genetic test performed on any person shall be deemed confidential and shall not be disclosed without the written informed consent of the person to whom such genetic test relates. This information shall not be released to any person or organization not specifically authorized by the individual subject of the test. Unauthorized solicitation or possession of such information shall be unlawful, except for the unintentional possession of such information as part of a health record created prior to the effective date of this section and provided no action adverse to the interests of the subject are taken as a result of such possession. Nothing in this section shall preclude the release of such information, with the subjectÂ&#x2019;s consent, to a health insurer or health maintenance organization of any information reasonably required for purposes of claims administration, provided, however, that further distribution within the insurer or to other recipients shall require the subjectÂ&#x2019;s informed consent in each case. (b) No person who lawfully possesses information derived from a genetic test on a biological sample from an individual shall incorporate such information into the records of a non-consenting individual who may be genetically related to the tested individual; nor shall any inferences be drawn, used, or communicated regarding the possible genetic status of the non-consenting individual. (4) (a) Notwithstanding the provisions of subdivision two of this section, genetic tests may be performed on anonymous samples for research or statistical purposes, pursuant to a research protocol approved by an institutional review board which assures the anonymity of the sources of the samples. (b) Notwithstanding the provisions of subdivision 2 of this section, genetic tests may be performed without the consent of the person who is the subject of the tests pursuant to an order of a court of competent jurisdiction or as provided pursuant to [insert citation.] (c) Notwithstanding the provisions of paragraph (a) of subdivision 3 of this section, the results of a genetic test may be disclosed to specified individuals without the consent of the subject of the test as provided in an order of a court of competent jurisdiction or as provided pursuant to [insert citation.] (d) In authorizing a genetic test or the disclosure of genetic test results to specified individuals, the court shall consider the privacy interests of the individual subject of the genetic test and of close relatives of such individual, the public interest, and, in the case of medical or anthropological research, the ethical appropriateness of the research. Disclosure shall be permitted only to individuals or agencies expressly named in court orders. Suggested State Legislation - 39

Confidentiality of Records of Genetic Tests 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161

(5) (a) Any person who violates the provisions of subdivision 2 or 3 of this section shall be guilty of a violation punishable by a civil fine of not more than [one thousand (1000)] dollars. (b) Any person who willfully violates the provisions of subdivision two or three of this section shall be guilty of a misdemeanor punishable by a fine of not more than [five thousand (5000)] dollars or by imprisonment for not more than [ninety (90)] days or by both such fine and imprisonment. (6) Nothing in this section shall be applicable to an authorized insurer, as defined in [insert citation,] or a person acting on behalf of an authorized insurer who is in compliance with [insert citation] nor shall anything in this section be deemed to prohibit or limit an authorized insurer from obtaining information pursuant to [insert citation.] (7) Notwithstanding the provisions of subdivision 2 of this section, genetic testing of newborn infants may be performed as provided pursuant to [insert citation.] (8) Notwithstanding the provisions of subparagraph vii of paragraph (b) of subdivision 2 of this section, additional genetic testing may be performed on a given sample without additional consent of the person tested provided such testing is necessary and required to demonstrate the integrity of the sample tested or to resolve the analysis of a test with a previously indeterminate result. (9) Notwithstanding the provisions of subdivision 2 of this section, samples may be used for tests other than those for which consent has been obtained, for purposes of research conducted in accordance with other applicable law and regulation and, where required by federal law and regulation, pursuant to a research protocol approved by an institutional review board, provided that any information disclosing the identity of the person from whom the sample was taken has been removed and the results are not linked to the person and that no information relating to the identity of the individual be disclosed. (10) Notwithstanding the provisions of subdivision 2 of this section, DNA samples may be stored for up to ten years in the absence of genetic testing, if authorized in writing by the subject. Prior to the performance of any genetic test upon stored samples, informed consent must be obtained as provided in subdivision 2 of this section. Retention of a DNA sample past a period of ten years requires explicit consent for a longer or indefinite period of retention. (11) Genetic testing may be performed on specimens from deceased persons if informed consent is provided by the next-of-kin as specified in subdivision 2 of this section.

Section 3. [Severability.] [Insert severability clause.]

Section 4. [Repealer.] [Insert repealer clause.]

Section 5. [Effective Date.] [Insert effective date.]

40 - The Council of State Governments

Defined Contribution Plans (Statement) Michigan HB 6229 as enrolled (Public Act 487 of 1996) Michigan HB 6206 as enrolled (Public Act 486 of 1996) Michigan, like many states, administers pension plans for state employees, elected officials and public-school employees. These plans comprise the state retirement system. In Michigan, separate retirement Acts govern the pension system for each group. However, all the plans are primarily funded by state contributions on behalf of the members, and the state directs the investments of the plans assets. Historically, Michigan s retirement system offered defined-benefit (DB) plans to their members. Generally, defined-benefit plans pay benefits to employees at retirement that are based on the employees salary and their years of state employment. These plans are essentially risk-free investments for the employee. In 1996, Michigan enacted a package of legislation to enable the state to offer defined-contribution (DC) retirement plans within the state retirement system. Defined-contribution plans require employees to contribute a portion of their salary toward their retirement plan. A portion of the employee s contribution is then matched by their employer. Defined-contributions plans are touted as giving employees more flexibility to determine the amount of their benefits and when they can get such benefits. Investments in these plans are considered riskier than those in DB plans. Generally, under the new laws, people who were employed prior to March 1997 can choose the defined-benefit plan or the defined-contribution plan. People who are employed after this date may only participate in the defined-contribution plan. The highlighted Acts in this Suggested State Legislation Statement, HB 6229 and HB 6206 affect state employees, legislators and the lieutenant governor. Interested readers can contact Michigan to get information about the other measures that were part of the legislative package. They are HB 6207 (amends the state Administrative Procedures Act), HB 6230 (Public School Employees Retirement Act) and SB 248 (State Judges Retirement Act).

HB 6229

House Bill 6229 amends the State Employees Retirement Act (MCL 38 le et al.) to establish a defined-contribution retirement plan for executive branch employees. The DC plan is mandatory for employees hired on or after March 1, 1997. It is optional for employees hired prior to this date. Employees who opt into the DC plan generally waive all their rights under their old DB plan. Suggested State Legislation - 41

Defined Contribution Plans (Statement) The state treasurer administers the plan. The treasurer can appoint an advisory board and contract for services to help administer the plan. Historically, as the employer, the state made all or most of the contributions to its employee retirement plans. Under this Act, the state contributes a base amount to an employeeÂ&#x2019;s account. This equals 4 percent of the employeeÂ&#x2019;s compensation. Employees can also elect to contribute up to 3 percent more of their compensation to the plan. The state will also match that amount. Employees can make additional contributions beyond 3 percent, but the state does not have to match such contributions. Employees have several investment choices or categories, but there are limits on the amounts that they can invest in a given category. Previously, vesting in the DB system generally required at least 10 years of service. Under this Act, employees in the DC plan are immediately 100 percent vested in their own contributions made to the DC plan account. For state contributions made to the account on their behalf, employees are vested 50 percent upon completing two years of service, 75 percent after three years of service, and 100 percent after four years of service. The DC plan covers 100 percent of the cost of hospitalization and medical coverage insurance premiums for retired vested members or their beneficiaries or dependents, and 90 percent of the cost of their dental and vision coverage. The plan pays 90 percent of the annual health insurance premium for members who have at least 30 years of service, and 30 percent for members with 10 years service. Health-care benefits under the Act are paid on an annual cash basis. The Act requires the state Department of Management and Budget to annually calculate the savings that accrue to the state as a result of DC plan, and to submit that amount in the executive budget to the Legislature. Such funds are supposed to be appropriated in the next succeeding fiscal year to the health insurance reserve fund. Amounts appropriated under this provision cannot be spent until the actuarial accrued liability for health benefits is 100 percent funded. Finally, the Act contains provisions to offer early retirement to state employees, transfer accumulated assets from DB accounts to DC accounts and to adjust retirement benefits for DC plan transferees.

HB 6206

This Act amended the Michigan Legislative Retirement System Act (MCL 38.1006 et al.) to establish a defined-contribution retirement plan for legislators and lieutenant governors who began serving on or after January 1, 1997. The DC plan is optional for elected officials who participated in the DB plan before this date. Under the DC plan, a member would be vested for purposes of receiving health insurance after six years of service as a qualified participant. Previously, legislators were vested in the retirement system after five years of 42 - The Council of State Governments

Defined Contribution Plans (Statement) service and election to the House of Representatives three times, election to the Senate twice, or an equivalent combination of service in the House and Senate. Interested readers should contact the Michigan Legislature to get a copy of the Acts.

Suggested State Legislation - 43

Environmental Leadership Program This Act creates a program to encourage businesses and local governments to develop and use innovative techniques to surpass the minimum standards for complying with state and federal environmental laws and regulations. Program components include pollution prevention, toxic use reduction, source reduction, resource recovery and energy efficiency. Submitted as: Colorado CH 235, Laws of 1998 Enacted into law, 1998.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] this Act may be cited as the Â&#x201C;Environmental Leadership Act.Â&#x201D;

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Section 2. [Legislative Declaration.] (1) The [General Assembly] hereby finds, determines, and declares that environmental leaders who demonstrate their commitment to the environment by going beyond compliance with environmental laws and regulations positively impact the quality of life for all of the citizens of the state by moving beyond compliance, environmental leaders improve the economy and the environment by increasing consumer and shareholder confidence, boosting management and employee morale, and operating in a safe and sensible manner that lessens their impacts on the environment. The [General Assembly] further finds, determines, and declares that increased use of pollution prevention strategies, more cost-effective options for compliance with environmental laws, and reduction in occurrences of noncompliance with environmental laws can be achieved through the establishment and implementation of a [Voluntary Environmental Leadership Program] pursuant to this Act. (2) The [General Assembly] further finds, determines, and declares that such voluntary program should provide entities with the opportunity to enter into an agreement with the [Department of Public Health and Environment] through which the [department] shall administer financial and other benefits to the participating entities that comply with a prescribed number of program elements established by the [executive director] of the [department] designed to reduce the adverse environmental impacts of the entity beyond that which would be achieved by compliance with environ-

44 - The Council of State Governments

Environmental Leadership Program 24 25 26 27 28 29 30 31 32 33 34

mental laws and permits alone. (3) The [General Assembly] finds, determines, and declares that environmental leaders should be granted financial incentives for pollution prevention, toxic use reduction, source reduction, resource recovery, energy efficiency, and innovative environmental technology investments that take the entity beyond compliance with state and federal environmental laws and permits. (4) The [General Assembly] further finds, determines, and declares that nothing in this Act shall be construed as requiring any entity in this state to participate in any environmental leadership program established under this Act.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32

Section 2. [Definitions.] As used in this Act, unless the context otherwise requires: (1) Advisory Board means the [Pollution Prevention Advisory Board] created in [insert citation.] (2) Department means the [Department of Public Health and Environment] created in [insert citation.] (3) Entity means any facility of a corporation, partnership, sole proprietorship, municipality, county, city and county, or special district located and doing business in this state; except that no facility that applies for the program and is part of a corporation, partnership, sole proprietorship, municipality, county, city and county, or special district that has other facilities in this state shall be eligible for the program unless all of the said facilities are in compliance with this state s applicable environmental laws and regulations and applicable federal environmental laws and regulations. (4) Environmental Leader means any entity that has complied with the mandatory elements and has established implementation plans for the elective elements of the voluntary environmental leadership program. Such implementation plans shall be the basis of a written agreement with the [department.] (5) Executive Director means the [executive director] of the [department.] (6) Hazardous substance or toxic substance means those chemicals defined as hazardous substances under section 313 of the federal Superfund Amendments and Reauthorization Act of 1986 ( SARA Title III ), including any subsequent amendments, and sections 101 (14) and 102 of the federal Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA ), as amended. (7) Pollution prevention has the same meaning as set forth in [insert citation.] (8) Program means the [Voluntary Environmental Leadership Program] created pursuant to this Act. (9) Serious violation means: Suggested State Legislation - 45

Environmental Leadership Program 33 34 35 36 37 38 39 40 41 42

(a) violations that are prone to cause significant impact to human health or to the environment; (b) a pattern of violations that demonstrate management systems are not adequate to address environmental issues; or (c) convictions for violations of environmental laws or out-of-court settlements of formal charges of such criminal violations. (10) Source reduction means any practice as described in [insert citation.] (11) Toxic use reduction has the same meaning as set forth in [insert citation.]

1 2 3 4 5 6 7 8 9 10 11

Section 3. [Powers and Duties of the Department.] (1) The [executive director,] after consultation with representatives from the regulated community, local governments, environmental advocacy groups, and other interested citizens, shall develop and implement a [Voluntary Environmental Leadership Program] in accordance with this Act. (2) The [department] shall administer the [program.] (3) Participation in the [program] by any entity is voluntary and is subject to review every [three (3)] years. (4) The [executive director] may seek the advice of and consult with the advisory board on matters related to the implementation and administration of the [program.]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Section 4. [Eligibility and Application Requirements.] (1) The [executive director] shall determine mandatory [program] elements for participants in the [program.] Mandatory elements shall include: (a) evidence of no serious violations of all applicable state and federal environmental laws and permits for a minimum of [three (3)] years immediately prior to the date of submission of the application for participation in the [program;] (b) evidence that no settlement agreement has been entered into and that no compliance or consent order has been issued for serious violations of environmental laws and permits for the [three (3)] years immediately prior to the date of submission of the application for participation in the [program;] (c) the existence and maintenance of an environmental management system to include, as appropriate, management-approved environmental policies, relevant procedures to achieve environmental compliance and employee training programs, compliance audit programs, and communication programs related to environmental compliance; (d) the existence and maintenance of an environmental compliance audit program to assess compliance with environmental laws, correct noncompliance within a reasonable period of time, and report audit findings as required by law;

46 - The Council of State Governments

Environmental Leadership Program 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65

(e) the existence and maintenance of a pollution prevention program or plan with specific goals and committed actions to significantly reduce releases of pollutants or the use of resources beyond the reductions required by law or permit. The amount of the reduction will aid the [executive director] in prioritizing the environmental leaders for the purpose of receipt of any available financial incentives. (f) the existence and maintenance of verifiable, quantitative and qualitative measures or methods that document compliance with environmental requirements, resource conservation goals, and pollution prevention performance goals. (2) (a) The [executive director] shall establish alternative elective program elements in addition to the mandatory program elements and application requirements. Entities applying to participate in the [program] shall select from among such alternative elective program elements and complete those selected within a specified time period. The number of elective program elements shall be based on the size of the entity as determined by the [executive director.] All elective program elements shall be designed to result in measurable improvement and enhancement of the environmental quality of the state or shall be activities that are beneficial to the environment. Elective program elements may include, but need not be limited to: (i) development and maintenance of programs that provide technical assistance or mentoring to one or more specified organizations to encourage technology transfers; (ii) active participation in industry or business environmental improvement programs; (iii) active participation or implementation of one or more recognized voluntary environmental programs, such as trip reduction; (iv) publication and public distribution of annual environmental performance summary reports; (v) promotion, sponsorship, and participation in community environmental and advisory programs; (vi) development and maintenance of management programs that encourage and reward employees for meeting or exceeding requirements of environmental laws or permits, and for participation in voluntary environmental activities; (vii) development or implementation of programs that reduce adverse environmental impact of development, manufacture, distribution, and marketing of the entityÂ&#x2019;s products or services; (viii) evaluation and revision of environmental management systems to update and strengthen environmental policies, procedures, goals, and employee training programs; (ix) acquisition and maintenance of national or international environmental certification or self-registration in the same. (b) The [executive director] may establish additional alternative elecSuggested State Legislation - 47

Environmental Leadership Program 66 67 68 69 70 71 72 73 74 75 76 77 78

tive program elements so long as such elements are designed to result in the measurable improvement and enhancement of the environmental quality of this state. Any additional alternative elective program elements established by the [executive director] shall have a reasonable nexus to the industry or business of the entity to which it applies. (3) The [executive director] shall determine application requirements and establish application forms for entities to submit proposals to participate in the [program.] The [department] shall review all applications submitted for the [program] and shall notify the entity that the application is complete or that the application is incomplete. If the application is incomplete, the [department] shall describe what additional information is required to complete the application. The entity may correct the application and resubmit it at any time.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Section 5. [Application Review and Authority to Enter into Agreement.] (1) The [executive director] shall review all completed applications within a reasonable period of time. If the [executive director] determines that the application meets the requirements for the [program,] the [executive director] shall notify the entity in writing, and the application shall be incorporated into a written agreement. If the [executive director] determines that the application does not meet the requirements of the [program,] the [executive director] shall notify the entity in writing and shall provide an adequate opportunity for the entity to address the outstanding items. (2) The [executive director] may enter into one or more agreements with an entity as necessary to implement the provisions of this Act. Such agreement shall describe the incentives to be provided to the entity. (3) The following documents shall be made available for public review: (a) The application, including documentation of compliance with environmental laws and permits applicable to the facility over the last [three (3)] years, information regarding an appropriate environmental management system, a description of the current status of proposed performance indicators, and an outline of the measures by which the [program] will be evaluated; (b) the [executive director]Â&#x2019;s determination regarding the application; and (c) the agreement described in Subsections (1) and (2) of this Section.

1 2 3 4 5 6

Section 6. [Withdrawal and Termination from the Program.] (1) Any entity may elect to withdraw from participation in the [program] at any time upon written notice to the [executive director]. (2) The [executive director] shall terminate the participation of any entity in the [program] if a serious violation is discovered or occurs and such violation is not properly disclosed in accordance with the law or is not cor-

48 - The Council of State Governments

Environmental Leadership Program 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

rected or remediated in a timely manner to the satisfaction of the [executive director]. (3) The [executive director] may continue the participation of an entity in the [program] if a serious violation is discovered or occurs and such violation is properly disclosed in accordance with law and is corrected or remediated in a timely manner to the satisfaction of the [executive director]. (4) (a) An entity s participation in the [program] shall be suspended from the time the serious violation is discovered or occurs until the time that it is corrected or remediated to the satisfaction of the [executive director.] (b) The [executive director] shall establish written policy and criteria that set forth circumstances under which an entity s participation shall be terminated. (5) If the [executive director] determines at any time that an entity is failing to perform or accomplish any of the agreed upon requirements of the [program,] and if, after written notice to the entity, the entity does not come into conformance within a reasonable period of time, the [executive director] may terminate the entity s participation in the [program.] (6) All incentives provided by the state pursuant to Section 7 of this Act shall be withdrawn, effective upon termination or withdrawal of the entity s participation in the [program.] If an entity withdraws or is terminated from the program, any unused incentives will be forfeited.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Section 7. [Incentives.] (1) The [executive director] shall establish and provide incentives to be granted to any entity that complies with all of the mandatory program elements and the prescribed number of elective program elements, as determined by the [executive director]. Any such entity may select some or all of the incentives established pursuant to this subsection (1). Such incentives may include, but need not be limited to: (a) formal public recognition by the [governor] and the [department] at least annually to include, but not be limited to: (i) this state s preferred vendor status; (ii) awards; (iii) public announcements; and (iv) news releases. (b) greater reliance by the [department] on the entity s self-monitoring, self-reporting, self-certification, or third-party certification to demonstrate compliance with environmental laws and permits, which may result in fewer inspections; (c) acceleration of review and processing of permit applications; (d) ability to consolidate permit applications for each facility of the Suggested State Legislation - 49

Environmental Leadership Program 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58

entity with one representative from the [department] responsible for all permitting communications with the entity; (e) consolidation and simplification of reporting and monitoring requirements; (f) extension of terms of environmental permits up to the maximum authorized under the relevant environmental laws; (g) ability to obtain additional credits for reductions in emissions or discharges that exceed minimum legal requirements under any operating emissions or discharge trading or credit program that has been or may be established. (2) (a) The [executive director] shall also establish and provide financial incentives available through the [program.] Financial incentives shall be graduated in amount in order to provide greater proportional monetary grants or rebates to smaller entities as determined by the [executive director] by the size of the environmental benefit provided by the entityÂ&#x2019;s actions. (b) No financial incentives shall be awarded unless the [executive director] has first determined that the entity applying for the financial incentive has performed all of the mandatory program elements and the prescribed number of elective program elements. Entities may only select one of the financial incentives established under this Subsection (2). (c) The [executive director] may establish the following financial incentives: (i) dollar credits to be applied against future obligations of the entity under state environmental laws, excluding fines or penalties assessed for violations of environmental laws. The amount of such credits shall be based on the size of the entity and the amount of the total verifiable costs invested by the environmental leader to implement the elective elements of the [program] and shall not exceed a total amount of [ten thousand (10,000)] dollars in any [three (3)] year period. (ii) dollar rebates or credits based on a percentage of permit and emission fees assessed under state environmental laws. Percentage amounts are to be determined based on the size of the entity. (d) The [department] shall request appropriations annually for environmental programs that require additional funding due to the award of dollar credits or rebates. if annual appropriations are not sufficient to provide funding for these programs, the [executive director] may limit the availability of financial incentives.

1 2 3 4 5

Section 8. [Environmental Leadership Pollution Prevention Revolving Fund - Program - Creation.] (1) The [executive director] shall establish and administer an [Environmental Leadership Pollution Prevention Revolving Fund Program] to provide low-cost loans for pollution prevention, toxic use reduction, source re-

50 - The Council of State Governments

Environmental Leadership Program 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34

duction, resource recovery, energy efficiency, and innovative environmental technology activities. Such loans shall be funded from moneys contributed to the [Environmental Leadership Pollution Prevention Revolving Fund] created in Subsection (2) of this Section. The [department] shall have the authority to enter into one or more agreements with state or local agencies, other public entities, political subdivisions, or authorities of the state, as necessary, to implement the provisions of this Section. (2) There is hereby established in the state treasury a fund to be known as the [Environmental Leadership Pollution Prevention Revolving Fund] that consists of moneys made available pursuant to law and gifts, donations, and grants accepted pursuant to Subsection (3) of this Section. Such moneys shall be dedicated and continuously appropriated to the [department] for the exclusive purpose of funding the [Environmental Leadership Pollution Prevention Revolving Fund Program] created pursuant to this section; except that funds shall be subject to annual appropriation by the [General Assembly] to the [department] for the purpose of covering the reasonable costs of administering the [Environmental Leadership Pollution Prevention Revolving Fund Program]. All interest derived from the deposit and investment of moneys in the fund shall be credited to the fund. At the end of any fiscal year, all unexpended or unencumbered moneys in the fund shall remain in the fund and shall not be credited or transferred to the [general fund] or any other fund. (3) The [executive director] may accept gifts, donations, and grants for any purpose connected with the [Environmental Leadership Pollution Prevention Revolving Fund Program,] but shall not solicit such gifts, donations, or grants. The [executive director] shall direct the disposition of all gifts, donations, and grants for any purpose consistent with the terms and conditions under which any such gift, donation, or grant was made.

1 2 3 4 5 6

Section 9. [Review - Repeal.] (1) This Article shall be reviewed by the [department] and the [advisory board] to assess its effectiveness in improving the environment of the state and report the results of such review to the [General Assembly] and the [governor] on or before [January 3, 2003.] (2) This Article is repealed, effective [December 31, 2003.]

Section 10. [Appropriations.] [Insert state appropriations to fund program.]

Section 11. [Severability.] [Insert severability clause.]

Section 12. [Repealer.] [Insert repealer clause.]

Section 13. [Effective Date.] [Insert effective date.] Suggested State Legislation - 51

Experimental Medical Care Disclosure This Act requires health insurance companies to develop a systematic, scientific process to track emerging medical and surgical treatments. This is to ensure that policyholders have access to the latest treatments. The Act defines the elements that must be included in the process (e.g., a review of medical literature) and requires companies to make a description of their process available to policyholders. Submitted as: Maryland SB 163 (CH 332, Laws of 1997) Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Experimental Medical Care Disclosure Act.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

Section 2. [Definitions.] (a) (1) In this section the following words have the meanings indicated. (2) Carrier means: (i) an insurer; (ii) a nonprofit health service plan; (iii) a health maintenance organization; (iv) a dental plan organization; (v) any person or entity acting as a third party administrator;

(vi) except for a managed care organization as defined in [insert citation,] any other person that provides health benefit plans subject to regulation by the state. (3) Contract means any written agreement between a provider and a carrier for the provider to render health care services to enrollees of the carrier. (4) Diagnostic services means any medical or surgical service or procedure that allows a provider to identify or diagnose a human disease or disorder. (5) Enrollee means any person or subscriber entitled to health care benefits from a carrier. (6) Health care services means a health or medical care procedure or service rendered by a provider that:

52 - The Council of State Governments

Experimental Medical Care Disclosure 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66

(i) provides testing, diagnosis, or treatment of a human disease or dysfunction; or (ii) dispenses drugs, medical devices, medical appliances, or medical goods for the treatment of a human disease or dysfunction. (7) (i) Provider means a person or entity licensed, certified, or otherwise authorized under [insert citation] to provide health care services. (ii) Provider includes: 1. a health care facility; 2. a pharmacy; 3. a professional services corporation; 4. a partnership; 5. a limited liability company; 6. a professional office; or 7. any other entity licensed or authorized by law to provide or deliver professional health care services through or on behalf of a provider. (8) Therapeutic services means any medical or surgical service or procedure that a provider can use to treat a human disease or disorder. (b) This section applies to any carrier that provides health care services to enrollees or otherwise makes health care services available to enrollees through contracts with providers. (c) The section does not: (1) apply to any cosmetic or medically unnecessary service or procedure that typically would be excluded from coverage by any carrier that issues or delivers contracts or policies of health insurance in the state; or (2) affect the right of an enrollee to appeal any adverse decision by a carrier through the carrier s appeal process. (d) (1) Each carrier shall disclose to providers and enrollees the carrier s definition of experimental medical care. (2) The carrier shall disclose the definition in: (i) contracts offered to providers that may render direct health care services to the enrollees of the carrier; and (ii) marketing materials and enrollment materials of the carrier that are provided to current enrollees and prospective enrollees, as appropriate. (e) Each carrier shall establish or subscribe or contract to provide a systematic, scientific process to follow for evaluating emerging medical and surgical treatments to ensure that subscribers have access to the latest appropriate treatments. (f) The process established or subscribed to or contracted for by a carrier under subsection (e) of this section shall include: Suggested State Legislation - 53

Experimental Medical Care Disclosure 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110

(1) a comprehensive review of medical literature and data evaluation; and (2) input from physicians and other recognized experts: (i) who are not employees of the carrier; and (ii) who: 1. are currently treating patients for the disease or condition being evaluated; 2. are board certified in the pertinent specialty or subspecialty area of the disease or condition being evaluated; 3. are generally recognized by their peers to be authoritative resources in the clinical area being evaluated as evidenced by: a. faculty appointments; b. authorship of a significant body of peer-reviewed clinical literature in the pertinent specialty or subspecialty area; or c. a demonstrated history of leadership in local, state, or national professional associations and nonprofit patient and community advocacy organizations that address the disease or condition and the specialty or subspecialty area in question; or 4. have a demonstrated history of substantial experience and practical knowledge in the specialty or subspecialty area in question. (g) A carrier s decision to provide coverage for an emerging medical or surgical treatment shall result from the consensus of opinion from its own analysis and the knowledge provided to the carrier from the process identified by the carrier in subsection (f) of this section. (h) Each carrier, in conjunction with the clinical experts identified by the carrier under subsection (f)(2) of this section, shall decide the patient selection criteria for an emerging medical or surgical treatment for which coverage by the carrier is to be provided. (i) Each carrier shall provide a description of the process identified by the carrier under subsection (f) of this section to enrollees and contracting providers and all other providers on request. (j) (1) A carrier s coverage decision on an emerging medical or surgical treatment shall be in compliance with [insert citation,] when being appealed by an enrollee. (2) A carrier may re-evaluate annually whether scientific advances warrant a change in the carrier s coverage and payment policy for an emerging medical or surgical treatment. (k) (1) Each carrier shall file annually with the [commissioner] a summary description of the clinical issues and diagnostic and therapeutic services that were evaluated and the conclusion of the evaluation, including the opinions of the clinical experts. (2) The [commissioner] shall: (i) make each carrier s filing under paragraph (1) of this

54 - The Council of State Governments

Experimental Medical Care Disclosure 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 134 135

subsection available to the public for inspection and review; and (ii) provide a copy of a carrierÂ&#x2019;s filing under paragraph (1) of this subsection to any person upon request in a timely manner and at a reasonable cost to the person. (l) After notifying a carrier and providing an opportunity for a hearing, the [commissioner] may issue an order under [insert citation] for a violation of this section. (m) (1) The [commissioner] may waive the application of subsection (f) of this section for a carrier that has in place a process for evaluating emerging medical and surgical treatments used for the purpose of making coverage decisions, if the [commissioner] determines that the carrierÂ&#x2019;s process is substantially equivalent to, or exceeds, the requirements of this section. (2) A carrier receiving a waiver under paragraph (1) of this subsection shall report any change in its process for evaluating emerging medical and surgical treatments to the [commissioner.] (3) The [commissioner] may withdraw a waiver granted under paragraph (1) of this subsection whenever the [commissioner] determines that the carrierÂ&#x2019;s process for evaluating emerging medical and surgical treatments is not substantially equivalent to the requirements of this section. (n) The [commissioner] may adopt regulations to carry out this section.

Section 3. [Severability.] [Insert severability clause.]

Section 4. [Repealer.] [Insert repealer clause.]

Section 5. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 55

Farm and Ranch Solid Waste Cleanup and Abatement Program This Act establishes a grant program for cities and counties to clean up solid waste that is illegally disposed on farm or ranch property. The Act creates a Farm and Ranch Solid Waste Cleanup and Abatement Account in the state general fund to underwrite the program. The account will be funded from various sources, including tire recycling and used oil recycling fees. Submitted as: California CH 875, Laws of 1997 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Â&#x201C;Farm and Ranch Cleanup and Abatement Act.Â&#x201D;

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Section 2. [Legislative Findings.] (a) The [Legislature] hereby finds and declares that illegal disposal of solid waste on property owned by innocent parties is a long standing problem needing attention and that grants provided under this Act will support the cleanup of farm and ranch property. (b) On or before [January 1, 1999,] the [board] shall establish a [Farm and Ranch Solid Waste Cleanup and Abatement Grant Program] under which cities and counties may seek financial assistance for the purposes of cleaning up and abating the effects of illegally disposed solid waste pursuant to this Act. (c) (1) The [Farm and Ranch Solid Waste Cleanup and Abatement Account] is hereby created in the [General Fund] and may be expended by the [board,] upon appropriation by the [Legislature] in the [Annual Budget Act,] for the purposes of this Act. (2) The following funds shall be deposited into the account: (i) Money appropriated by the [Legislature] from the [Integrated Waste Management Fund,] the [Tire Recycling Management Fund,] or the [Used Oil Recycling Fund] to the [board] for the [grant program.] (ii) Notwithstanding [insert citation,] any interest earned on the money in the [account.] (3) The [board] may expend the money in the [account] for both of

56 - The Council of State Governments

Farm and Ranch Solid Waste Cleanup and Abatement Program 22 23 24 25 26 27 28 29 30 31 32 33 34 35

the following purposes: (i) To pay the costs of implementing this Act, which costs shall not exceed [seven (7)] percent of the funds available for the [grant program.] (ii) To make payments to cities and counties for grants authorized by this Act. (4) Upon authorization by the [Legislature] in the [Annual Budget Act,] the sum of all funds transferred into the account from other funds or accounts shall not exceed [one million (1,000,000)] dollars annually. (5) Notwithstanding any other provision of law, the [grant program] shall be funded from the following funds: (i) [The Integrated Waste Management Fund.] (ii) [The Tire Recycling Management Fund.] (iii) [The Used Oil Recycling Fund.]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29

Section 3. [Local Governments.] (a) The [grant program] shall be established to make grants available to cities and counties for the purposes described in section 2 of this Act in an amount not to exceed the sum of [fifty thousand (50,000)] dollars per year for any single city or county, and not to exceed [ten thousand (10,000)] dollars for any single cleanup or abatement project. Administrative costs of the city or county shall not exceed [three (3)] percent of the grant. (b) The [board] shall give priority to the provision of grants to cities and counties that have established innovative and cost-effective programs designed to discourage the illegal disposal of solid waste and to encourage the proper disposal of solid waste in permitted solid waste disposal facilities. (c) A grant agreement between the [board] and a city or county may provide for, but is not limited to, all of the following provisions: (1) Site-specific cleanup and removal of solid waste that is illegally disposed on farm or ranch property. (2) Comprehensive, ongoing enforcement programs for the cleanup and removal of solid waste that is illegally disposed of on farm or ranch property. (3) Waiver of tipping fees or other solid waste fees at permitted solid waste facilities for solid waste that was illegally disposed of on farm or ranch property. (d) (1) Until such time that the [board] adopts regulations for the [grant program] pursuant to section 5 of this Act, any fine levied on, or abatement order issued against, a farm or ranch property owner by a local enforcement agency or other local agency prior to [January 1, 1998,] if the fine has not been paid or the abatement order fulfilled as of [January 1, 1998,] or levied or issued, as the case may be, on and after [January 1, 1998,] but prior to adoption of the regulations, as a result of solid waste disposed of on the ownerÂ&#x2019;s ranch or farm property shall be stayed if the local agency makes Suggested State Legislation - 57

Farm and Ranch Solid Waste Cleanup and Abatement Program 30 31 32 33 34 35 36 37 38 39 40 41 42

a decision that the property owner was not responsible for the dumping or the property owner has filed a written appeal of the local agency s decision to the [board] and the [board s] decision on the matter is pending. (2) On and after the adoption of [grant program] regulations by the [board,] any fines levied on, or abatement orders issued against, a farm or ranch owner by the local enforcement agency or other local agency as the result of solid waste disposed of on the owner s farm or ranch property, regarding which the owner has made application to a city or county for a grant under this Act, shall, upon the owner s written request to the local enforcement agency or other local agency, be stayed if the local agency makes a decision that the property owner was not responsible for the dumping or the property owner has filed a written appeal of the local agency s decision to the [board] and the [board s] decision on the matter is pending.

1 2 3

Section 4. [Eligibility.] No farm or ranch property owner shall be eligible for a grant pursuant to this Act if it is determined by the city or county that the owner was responsible for the illegal disposal of the solid waste.

1 2 3 4 5 6 7 8

Section 5. [Regulations.] (a) The [board] shall adopt regulations to implement this Act. (b) The regulations adopted pursuant to this section shall include criteria for grant eligibility and shall establish a process that is open and accessible to the public under which grant applications may be reviewed, ranked, and awarded. The regulations shall also develop a process for a farm or ranch property owner to appeal a city s or county s determination of responsibility pursuant to section 4 of this Act.

1 2 3 4 5 6

Section 6. [Application Denial.] (a) If a local agency denies a grant application, it shall notify the farm or ranch property owner in writing as to why the application was denied. (b) Nothing in this section is intended to prevent a farm or ranch property owner from receiving reimbursement for solid waste cleanup or abatement costs under the [grant program] or pursuant to any other law.

1 2 3 4 5 6 7 8 9 10

Section 7. [Reporting Requirements.] (a) Each year, as part of an annual report required to be submitted pursuant to [insert citation,] the [board] shall report to the [Governor] and the [Legislature] on the actions it has taken under the [grant program] and the number of illegal disposal sites that have been cleaned up and abated pursuant to the [grant program.] (b) On or before [January 1, 2001,] the [board] shall review the [grant program] and report to the [Governor] and the [Legislature] on its costs and effectiveness in cleaning up and abating solid waste illegally disposed of on farm or ranch property. The report shall include all of the following

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Farm and Ranch Solid Waste Cleanup and Abatement Program 11 12 13 14 15 16 17 18

information: (1) The number of sites that have been cleaned up in each county. (2) The types of solid waste cleaned up. (3) The number of sites not approved for the [grant program,] and the reasons for that disapproval. (4) The number of participant cities and counties. (5) The types of property on which solid waste has been cleaned up or abated.

1 2 3 4 5 6

Section 8. [Recycling.] All solid waste collected by a city or county as a result of cleanup or abatement under the [grant program] shall be recycled or reused to the maximum extent feasible and cleanup or abatement activities shall be conducted in compliance with existing laws governing the handling of solid wastes, hazardous wastes, liquid wastes, or medical wastes, as appropriate.

1 2 3 4 5 6 7 8

Section 9. [Liability.] Nothing in this Act is intended to relieve any party who is responsible for the generation or illegal deposition of the solid waste from liability for removal costs if the party can be identified. Farm or ranch property owners whose property is the subject of solid waste cleanup or abatement under this Act and who are not responsible for the generation or deposition of the solid waste shall not be subject to any cost recovery action for cleanup or abatement costs borne by cities or counties or the [board] under this Act.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Section 10. [Disposition of Revenue.] The [board] shall deposit all amounts paid pursuant to [insert citation] by manufacturers, civil penalties, or fines paid pursuant to this Act, and all other revenues received pursuant to this Act into the [Used Oil Recycling Fund,] which is hereby created in the state treasury. Notwithstanding [insert citation,] the money in the fund is to be appropriated solely as follows: (a) Continuously appropriated to the [board] for expenditure for the following purposes: (1) To pay recycling incentives pursuant to [insert citation.] (2) To provide a reserve for contingencies, as may be available after making other payments required by this section, in an amount not to exceed [one million (1,000,000)] dollars. (3) To make block grants for the implementation of local used oil collection programs adopted pursuant to [insert citation] to cities, based on the cityÂ&#x2019;s population, and counties, based on the population of the unincorporated area of the county, in a total annual amount equal to [ten million (10,000,000)] dollars or half of the amount which remains in the fund after the expenditures are made pursuant to paragraphs (1) to (3), inclusive, and subdivision (b), whichever amount is greater, multiplied by the fraction equal Suggested State Legislation - 59

Farm and Ranch Solid Waste Cleanup and Abatement Program 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

to the population of cities and counties which are eligible for block grants pursuant to [insert citation,] divided by the population of the state. The [board] shall use the latest population estimates of the state generated by the [Population Research Unit] of the [Department of Finance] in making the calculations required by this paragraph. (b) The money in the fund may be expended by the [board] for the administration of this Act and by the [department] for inspections and reports pursuant to [insert citation,] only upon appropriation by the [Legislature] in the [Annual Budget Act.] (c) The money in the fund may be transferred to the [Farm and Ranch Solid Waste Cleanup and Abatement Account] in the [General Fund,] upon appropriation by the [Legislature] in the [Annual Budget Act,] to pay the costs associated with implementing and operating the [Farm and Ranch Solid Waste Cleanup and Abatement Grant Program] established pursuant this Act. (d) Appropriations to the [board] to pay the costs necessary to administer this Act, including implementation of the reporting, monitoring, and enforcement program pursuant to [insert citation,] shall not exceed [three million (3,000,000)] dollars annually.

Section 11. [Severability.] [Insert severability clause.]

Section 12. [Repealer.] [Insert repealer clause.]

Section 13. [Effective Date.] [Insert effective date.]

60 - The Council of State Governments

Fertilizer Protecting consumers and the environment has prompted at least two states to begin regulating the fertilizer industry: Florida and Washington. Washington passed Chapter 36 in 1998 to: Ensure that all fertilizers meet standards for allowable metals; Allow fertilizer purchasers and users to know about the contents of fertilizer products; and; Clarify the department of ecology s oversight authority over wastederived fertilizers. Washington s law directs the state Department of Ecology, in conjunction with the departments of agriculture and health, to undertake a study of whether dioxins occur in fertilizers, soil amendments, and soils and if so, at what levels. It directs the state Department of Ecology to seek additional financial and technical assistance from appropriate federal agencies, the fertilizer industry, and other appropriate sources in conducting the study. This legislation is based on a Florida law. It addresses the sale and content of commercially sold fertilizer. The Act: Adds compost, manure and pelletized fertilizer to be regulated by the state if they are sold as commercial fertilizers; Defines soil amendment, soil conditioner, soil additive, and unmanipulated animal and vegetable manure; Authorizes the state department of agriculture and consumer services to test fertilizers and collect fees for costs; Provides for penalties and compensation for certain plant nutrient deficiencies; Revises the method of determining commercial value of fertilizer; Provides for the appointment of members and alternate members of a state fertilizer technical council; Revises performance levels for licensees; and Provides standards for the distribution of certain fertilizers. Submitted as: Florida CH 97-6 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2 1

Section 1. [Short Title.] This Act may be cited as the Fertilizer Composition Regulation Act. Section 2. [Definitions.] When used in this chapter, the term: Suggested State Legislation - 61

Fertilizer 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45

(1) Advertisement means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of fertilizer. (2) Best-management practices means practices or combinations of practices determined by research or field testing in representative sites to be the most effective and practicable methods of fertilization designed to meet nitrate groundwater quality standards, including economic and technological considerations. (3) Brand means a term, design, or trademark used in connection with one or several grades of fertilizer. (4) Bulk fertilizer means commercial fertilizer in a nonpackaged form. (5) Compost means a substance derived primarily or entirely from decomposition of vegetative or animal organic material, which is sold or offered for sale for the purpose of promoting or stimulating plant growth, and to which no inorganic fertilizer materials have been added other than to promote decomposition. Such products may not contain more than [twelve (12)] percent total plant nutrients. (6) Coning means the formation of a pyramidal pile or cone of dry bulk mixed fertilizer such as may occur while being loaded into a holding hopper or transport vehicle and cause separation and segregation of the fertilizer components. (7) Dealer means any person, other than the manufacturer, who offers for sale, sells, barters, or supplies commercial fertilizer. (8) Deconing means any accepted process employed by a licensee that will prevent or minimize coning. (9) Deficiency means the amount of nutrient found by analysis to be less than that guaranteed which may result from lack of nutrient ingredients or from lack of uniformity. (10) Department means the [Department of Agriculture and Consumer Services] or its authorized representatives. (11) Excess means the amount found by analysis to be over that guaranteed on the label. (12) Fertilizer means any substance which: (a) Contains one or more recognized plant nutrients and promotes plant growth, or (b) Controls soil acidity or alkalinity, or (c) Provides other soil enrichment, or (d) Provides other corrective measures to the soil. For the purposes of this Act, the term fertilizer does not include unmanipulated animal or vegetable manures, peat, or compost which make no claims as described in paragraphs (a) through (d). (13) Fertilizer-pesticide mixture means a fertilizer containing a pesticide. (14) Grade means the percentages in fertilizer of total nitrogen ex-

62 - The Council of State Governments

Fertilizer 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89

pressed as N, available phosphorus expressed as P2O5, and soluble potassium expressed as K2O, stated in whole numbers in that order. (15) Guaranteed analysis means the percentage of plant nutrients or measures of neutralizing capability claimed to be present in a fertilizer. (16) Investigational allowance means an allowance for variations inherent in the taking, preparation, and analysis of an official sample of fertilizer. (17) Label means a display of written, printed, or graphic matter upon the immediate container of any fertilizer or accompanying any fertilizer when moved in bulk. (18) Labeling means all labels and other written, printed, or graphic matters upon an article or any of its containers or wrappers, or accompanying such article. (19) Licensee means a person who guarantees a fertilizer and receives a license to distribute fertilizer under the provisions of this chapter. (20) Manipulated manure, or manure when not qualified as unmanipulated, means substances, other than unmanipulated manures, composed of excreta of animals and residual materials that have been used for bedding, sanitary, or feeding purposes for animals, and to which no fertilizer materials have been added other than for neutralization or sanitary purposes. (21) Manufacturer means a person engaged in the business of importing, preparing, mixing, blending, or manufacturing fertilizer for sale, either direct to consumers or by or through other media of distribution, and the word manufacture means preparation, mixing, blending, or manufacturing for the purpose of distribution. (22) Misbranded means that one or more label requirements have not been fulfilled. (23) Mixed fertilizer means a fertilizer containing any combination or mixtures of fertilizers. (24) Natural organic fertilizer means a material derived from either plant or animal products containing one or more elements (other than carbon, hydrogen, and oxygen) which are essential for plant growth. (25) Nitrogen breakdown means the classification of forms of nitrogen guaranteed in percent by weight, the sum of which equals the total nitrogen guarantee. (26) Official check sample means a sealed and identified sample taken from the official sample for use in check analysis. (27) Official sample means any sample of fertilizer taken by the [department] in accordance with the provisions of this law or rules adopted hereunder, and designated as official by the [department.] (28) Organic fertilizer means a material containing carbon and one or more elements, other than hydrogen and oxygen, essential for plant growth. This term includes both natural organic fertilizer and synthetic organic Suggested State Legislation - 63

Fertilizer 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 134 135 136

fertilizer. (29) Pelletized fertilizer means a fertilizer in a form, uniform in size and usually of globular shape, containing one or more nutrients produced by one of several methods including: (a) Solidification of a melt while falling through a countercurrent stream of air. (b) Dried layers of slurry applied to recycling particles. (c) Compaction. (d) Extrusion. (e) Granulation. (30) Percent or percentage means the percentage by weight. (31) Primary plant nutrient means total nitrogen expressed as N, available phosphorus expressed as P2O5, and soluble potassium expressed as K2O, or any combination of these substances. (32) Registrant means the person who registers specialty fertilizer under the provisions of this Act. (33) Secondary plant nutrient and micro plant nutrient mean those nutrients other than the primary plant nutrients that are essential for the normal growth of plants and have been added to the fertilizer. (34) Slow or controlled release fertilizer means a fertilizer containing a plant nutrient in a form which delays its availability for plant uptake and use after application, or which extends its availability to the plant significantly longer than a reference rapidly available nutrient fertilizer, such as ammonium nitrate or urea, ammonium phosphate, or potassium chloride. (35) Soil amendment, soil conditioner, or soil additive means any substance or mixture of substances sold or offered for sale for soil enriching or corrective purposes, intended or claimed to be effective in promoting or stimulating plant growth, increasing soil or plant productivity, improving the quality of crops, or producing any chemical or physical change in the soil, except amendments, conditioners, additives, and related products that are derived solely from inorganic sources and that contain no recognized plant nutrients. (36) Specialty fertilizer means any fertilizer packaged, marketed, and distributed for home and garden use and packaged in containers or bags such that the net weight is [forty-nine (49)] pounds or less. (37) Synthetic organic fertilizer means a material that is manufactured chemically (by synthesis) from its elements or other chemicals. (38) Ton means a net weight of [two thousand (2,000)] pounds avoirdupois. (39) Unit of plant nutrient means [one (1)] percent by weight or [twenty (20)] pounds per ton. (40) Unmanipulated animal and vegetable manure means substances composed of excreta of animals or plant remains which do not contain any

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Fertilizer 137 138 139 140 141 142 143

materials other than those which have been used for bedding, sanitary, or feeding purposes for such animals, and which have not been mechanically or systematically dried, ground, shredded, blended with plant-food additives, or processed in any other manner. (41) Water-insoluble nitrogen means nitrogen not soluble in water. (42) Water-soluble nitrogen means all organic nitrogen soluble in water.

1 2 3 4 5 6 7 8 9 10 11

Section 3. [Registration and Licensing.] (1) Labels for each brand and product grade shall accompany the application and shall include the following information: (a) The brand and grade. (b) The guaranteed analysis. (c) The name and address of the licensee. (d) The net weight. (e) The sources from which the nitrogen, phosphorus, and potassium are derived. (f) The sources of secondary plant nutrients and micro plant nutrients if guaranteed, claimed, or advertised.

1 2 3 4 5

Section 4. [Labeling.] (1) Any fertilizer distributed in this state in containers shall have placed on or affixed to the immediate and outside container a label setting forth in clearly legible and conspicuous form the following information: (a) The name and address of the licensee.

1 2 3 4 5 6

Section 5. [Inspection, Sampling, Analysis.] The [department] is directed to sample, test, inspect, and make analyses of fertilizer sold or offered for sale within this state. The [department] may conduct commercial tests of fertilizer and fix and collect fees in an amount to cover the direct and indirect costs associated with the tests when requested as an aid to support compliance with this Act.

1 2 3 4 5 6 7 8 9 10 11

Section 6. [Plant Nutrient Investigational Allowances Tolerances, Deficiencies, and Penalties.] (1) Investigational allowances are set as follows: (a) Primary plant nutrients; investigational allowances. Guaranteed Percent 04 or less 05 06

Total Nitrogen Percent 0.49 0.51 0.52

Available Phosphate Percent 0.67 0.67 0.67

Potash Percent 0.41 0.43 0.47 Suggested State Legislation - 65

Fertilizer 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55

07 08 09 10 12 14 16 18 20 22 24 26 28 30 32 or more

0.54 0.55 0.57 0.58 0.61 0.63 0.67 0.70 0.73 0.75 0.78 0.81 0.83 0.86 0.88

0.68 0.68 0.68 0.69 0.69 0.70 0.70 0.71 0.72 0.72 0.73 0.73 0.74 0.75 0.76

0.53 0.60 0.65 0.70 0.79 0.87 0.94 1.01 1.08 1.15 1.21 1.27 1.33 1.39 1.44

For guarantees not listed, calculate the appropriate value by interpolation. (b) Nitrogen investigational allowances. Nitrogen breakdown Investigational allowances Percent Nitrate nitrogen 0.40 Ammoniacal nitrogen 0.40 Water soluble nitrogen or urea nitrogen 0.40 Water insoluble nitrogen 0.30 In no case may the investigational allowance exceed [fifty (50)] percent of the amount guaranteed. (c) Secondary and micro plant nutrients, total or soluble. Element Investigational allowances Percent Calcium 0.2 unit +5 percent of guarantee Magnesium 0.2 unit +5 percent of guarantee Sulfur (free and combined) 0.2 unit +5 percent of guarantee Boron 0.003 unit +15 percent of guarantee Cobalt 0.0001 unit +30 percent of guarantee Chlorine 0.005 unit +10 percent of guarantee Copper 0.005 unit +10 percent of guarantee Iron 0.005 unit +10 percent of guarantee Manganese 0.005 unit +10 percent of guarantee Molybdenum 0.0001 unit +30 percent of guarantee Sodium 0.005 unit +10 percent of guarantee Zinc 0.005 unit +10 percent of guarantee The maximum allowance for secondary and minor elements when cal-

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Fertilizer 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99

culated in accordance with this section is [one (1)] unit [one (1) percent.] In no case, however, may the investigational allowance exceed [fifty (50)] percent of the amount guaranteed. (d) Liming materials and gypsum. Range Percent Investigational allowances Percent 0-10 0.30 Over 10-25 0.40 Over 25 0.50 (e) Pesticides in fertilizer mixtures. An investigational allowance of [twenty-five (25)] percent of the guarantee shall be allowed on all pesticides when added to custom blend fertilizers. (2) Deficiencies, compensation, and penalties shall be as follows: (a) When the commercial value of a mixed fertilizer found to be deficient in primary plant nutrient equals or exceeds the amount guaranteed by the licensee, no penalty shall be assessed, provided no element of primary plant nutrient is deficient more than [one-half (1/2)] percent when the guarantee does not exceed [ten (10)] percent or more than [one (1)] percent when the guarantee exceeds [ten (10)] percent. If the commercial value found fails to equal or exceed that which is guaranteed, a penalty shall be assessed based on the deficiency found, but in no instance shall the penalty be less than [ten (10)] dollars. No overage in any secondary plant nutrient or micro plant nutrient shall compensate for a deficiency in primary plant nutrient or of another secondary plant nutrient or micro plant nutrient. When a deficiency is found in any plant nutrient, the buyer shall be entitled to collect an amount from the licensee equal to [three (3)] times the commercial value of the deficiency found. If the licensee on which a penalty is assessed for a plant nutrient deficiency is on probationary status as provided in this chapter and rules adopted thereunder, the licensee shall pay to the [department] an additional amount equal to [one-half (1/2)] the penalty assessed. The proceeds from any such penalty shall be deposited into the [General Inspection Trust Fund] to be used for the sole purpose of funding the fertilizer inspection program. A penalty shall be assessed if any of the plant nutrients in mixed fertilizer or fertilizer material are found below the investigational allowances provided in subsection (1), unless compensable. (b) Penalties shall be assessed at the rate of [three (3)] times the commercial value of the deficiency found, using the formula: the percent deficient times the commercial value times [three (3)] times the tonnage represented by the official sample. (c) A deficiency in a nitrogen breakdown form shall be compensated by an excess in another nitrogen form if the following criteria are met: (i) [Fifty (50)] percent or greater of the guaranteed amount of the deficient form must be found by analysis. Suggested State Legislation - 67

Fertilizer 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143

(ii) The excess in the nitrogen forms used for compensation must exceed the commercial value of the guaranteed forms found within investigational allowance but below guarantee. If the criteria for compensation in this paragraph are not met, a penalty shall be assessed on the difference in the guaranteed and found percentages of the deficient nitrogen form. When compensation is applied to a deficiency and the total commercial value of the nitrogen forms found by analysis fails to equal [one hundred (100)] percent of the total commercial value of the nitrogen forms guaranteed, a penalty of [three (3)] times the difference of the commercial value after compensation and the commercial value guaranteed shall be assessed. A penalty must be assessed on the nitrogen breakdown when both the total nitrogen and the nitrogen breakdown are found to be deficient. If the nitrogen breakdown is within investigational allowance and the total nitrogen is deficient, a penalty shall be assessed against the total nitrogen deficiency unless compensable as provided in this chapter. If the nitrogen is derived solely from ammonium nitrate, the commercial value used in determining the penalty on either the total nitrogen or the nitrate nitrogen must be the same as that of the ammoniacal nitrogen. (d) In assessing penalties on a deficient lot of dolomite or limestone, the following formula shall be used: the percentage guarantee minus the percentage of CaCO3 or MgCO3 found times the commercial value times [three (3)] times the tonnage represented by the official sample. Shortages in CaCO3 liming materials may be compensated by overages in MgCO3 on a unit-for-unit basis. (e) In calculating penalties, no consideration may be given to investigational allowances. (f) When a pesticide in a fertilizer-pesticide mixture is found by analysis to be deficient beyond the investigational allowance as provided in this section, the buyer is entitled to collect an amount from the registrant equal to [three (3)] times the value of the deficiency found, except when the official sample was taken from a fertilizer-pesticide mixture that was in the possession of a consumer for more than [forty-five (45)] days after the date of purchase by that consumer. When a deficiency is found in a sample drawn from a fertilizer-pesticide mixture in the hands of a dealer or agency, the penalty shall be disbursed as provided in paragraph (3)(e). The value of the deficiency found must be an amount equal to the product of the percent deficient times the comparable consumer invoice value of the quantity of pesticide as active ingredient represented by the official sample, divided by the percent guarantee of the pesticide. In no instance may the penalty be less than [twenty-five (25)] dollars. (3) (a) In tobacco brands of mixed fertilizer, the penalty for an excess of chlorine of more than [twenty-five (25)] percent of the guarantee shall be [one hundred (100)] percent of the commercial value of the mixed fertilizer.

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Fertilizer 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187

No penalty shall be assessed for an excess of chlorine of less than [twentyfive (25)] percent of the guarantee and in no case shall a penalty be assessed unless the chlorine present is [one (1)] percent or more. (b) Within [sixty (60)] days from the date of issuance of a fertilizer analysis report from the [department] and the notice of penalties assessed under the provisions of this Act, a licensee shall make payment in full to the consumer, in cash, or by credit memo if and to the extent the consumer is indebted to the licensee or dealer. Any licensee who fails to make settlement in full to the consumer within the [sixty (60)] days is liable for interest on the penalty of [one-and-a-half (1.5)] percent per month from the date of issuance of the fertilizer analysis report. If a licensee demands an analysis of the official check sample by a referee chemist, the [sixty (60)] day settlement requirement shall be temporarily suspended pending a final determination. When the final and binding analysis has been established, it shall be the responsibility of the [department] to determine the amount of penalty, if any, due to the consumer and to notify in writing the licensee and the consumer of the final determination. The licensee shall have [ten (10)] days from the date of receipt of the final determination from the [department] to make settlement with the consumer and shall notify the [department] in writing of the terms of the settlement. (c) If any fertilizer is found to be of short weight by the [department,] the licensee, within [thirty (30)] days after receipt of notice of such short weight, shall make payment to the consumer or the [department] an amount of [three (3)] times the commercial value of the shortage in each case, or by credit memo if and to the extent the consumer is indebted to the licensee or dealer, but in no instance shall the penalty be less than [twentyfive (25)] dollars. Any licensee who fails to make settlement in full to the consumer or the [department] within [sixty (60)] days is liable for interest on the penalty of [one-and-a-half (1.5)] percent per month from the date of issuance. The licensee shall notify the [department] in writing of the terms of the settlement. (d) If the licensee, dealer, or agent fails or refuses to make payment to the consumer within the time required, the consumer may institute legal proceedings against the licensee, dealer, or agent for recovery of penalties as provided in this chapter. Any judgment against a licensee, dealer, or agent shall be double the amount of the penalty and shall include a reasonable attorneyÂ&#x2019;s fee and costs. (e) When a deficiency is found in a sample drawn from a lot of fertilizer in the hands of a dealer or agency, the dealer or agency shall collect the amount due under the deficiency from the licensee and shall within [sixty (60)] days pay to each person purchasing fertilizer from such lot a proportionate share of the amount collected and shall notify the [department] in writing that such payment has been made. However, as to any individual sale by a dealer or agent of fertilizer subject to penalties for deficiencies Suggested State Legislation - 69

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when the dealer or agent is unable to determine the purchaser of the lot of fertilizer, the dealer or agent shall pay the proportionate amount of penalties to the [department] to be placed in the [State Treasury] to the credit of the [General Inspection Trust Fund] to be used for the sole purpose of funding the fertilizer inspection program. (4) When it is determined by the [department] that a fertilizer has been distributed without being licensed or registered, or without labeling, the [department] shall require the licensee to pay a penalty in the amount of [one hundred (100)] dollars. The proceeds from any penalty payments shall be deposited by the [department] in the [General Inspection Trust Fund] to be used for the sole purpose of funding the fertilizer inspection program. (5) The [department] may enter an order imposing one or more of the following penalties against any person who violates any of the provisions of this Act or the rules adopted hereunder or who shall impede, obstruct, hinder, or otherwise prevent or attempt to prevent the [department] in the performance of its duty in connection with the provisions of this Act: (a) Issuance of a warning letter. (b) Imposition of an administrative fine of not more than [one thousand (1000)] dollars per occurrence after the issuance of a warning letter. (c) Cancellation, revocation, or suspension of any license issued by the [department.]

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Section 7. [Commercial Value.] The commercial value used in assessing penalties for any deficiency shall be determined by using annualized plant nutrient values contained in one or more generally recognized journals recommended by the [Fertilizer Technical Council.]

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Section 8. [Fertilizer Technical Council.] (1) The [Fertilizer Technical Council] is created within the [department.] The [Commissioner of Agriculture] shall appoint all members and alternate members of the [council.] (2) The [council] is composed of [thirteen (13)] members including: (a) [Three (3)] representatives of the [department;] a citizen not involved in the manufacture, distribution, or sale of fertilizer, the [Dean for Research] and the [Dean for Extension] at the [Institute of Food and Agricultural Sciences] at the [University of Florida;] and one representative each from the beef cattle, field crops, citrus, vegetable, fertilizer, pesticide, and agricultural limestone industries in the state. (b) The [commissioner] may appoint an alternate member for each member. (3) The meetings, powers and duties, procedures, record keeping and reimbursement of expenses of members and alternate members of the council, shall be in accordance with [insert citation.]

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Section 9. [Cancellation, Revocation, And Suspension; Probationary Status.] (1) The [department] may place any licensee on a probationary status when the deficiency levels of samples taken from that licensee do not meet minimum performance levels established by statute rule within the investigational allowances provided in [insert citation.]

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Section 10. [Prohibited Acts.] The following acts are prohibited: (1) The sale of any material as a fertilizer or as an ingredient of any mixed fertilizer showing an activity of water-insoluble nitrogen less than prescribed by the Association of [Official Analytical Chemists.] Fertilizer not defined by the [Association of American Plant Food Control Officials] may be distributed as fertilizer, provided the licensee furnishes an acceptable definition, [Association of Official Analytical Chemists] analysis, or other appropriate method of analysis, and provides efficacy studies with appropriate controls that have been generated in accordance with good scientific practices whose results have been peer reviewed and published in a generally available scientific journal or have been reviewed and recognized by the research department of an accredited agricultural college or university. The data must clearly quantify and demonstrate a beneficial plant growth response attributable to the fertilizer material when it is used in accordance with the manufacturerÂ&#x2019;s or distributorÂ&#x2019;s recommendations.

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Section 11. [Administration; Rules; Procedure.] The [department] is authorized, by rule, to implement, make specific, and interpret the provisions of this chapter, and specifically to determine the composition and uses of fertilizer as defined in this Act, including, without limiting the foregoing general terms, the taking and handling of samples, the establishment of investigational allowances, deficiencies, and penalties where not specifically provided for in this Act; to prohibit the sale or use in fertilizer of any material proven to be detrimental to agriculture, public health, or the environment, or of questionable value; to provide for the incorporation into fertilizer of such other substances as pesticides and proper labeling of such mixture; and to prescribe the information which shall appear on the label other than specifically set forth in this Act.

Section 12. [Severability.] [Insert severability clause.]

Section 13. [Repealer.] [Insert repealer clause.]

Section 14. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 71

Foreign Capital Depository This Act authorizes and provides the framework to create financial institutions as depositories for foreign investors. This Act contains language detailing how to charter foreign capital depositories, financial privacy, asset protection, and specialized services to nonresident aliens who are depository customers. This Act is based on a 1997 Montana law which was reported to be the first of its kind in the nation. The Montana law has two major parts. The first part is new language to set up foreign capital depositories in the state. The second part inserts references to foreign capital depositories into other disparate sections of the state s existing banking laws. The latter are referenced in the Montana law as the Bank Act. This SSL draft contains all the provisions in the first part of the Montana law, but only excerpts from the second part that specifically mention foreign depositories. Submitted as: Montana SB 83 Enacted into law, 1997.

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Section 1. [Short Title and Scope.] (1) This Act may be cited as the Foreign Capital Depository Act. (2) Sections 1 through 67 of this Act set forth the terms and conditions under which a foreign or domestic financial institution may do business in this state as a state-chartered foreign capital depository. (3) Sections 68 through 81 modify previous state banking laws to incorporate foreign capital depositories.

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Section 2. [Purpose.] The [Legislature] finds and declares that: (1) political instability, economic insecurity, and financial risk outside the United States create incentives for the transfer and investment of foreign capital derived from legitimate estates and business activities to relatively safe places such as this state; (2) political conditions in some countries are contrary to the fundamental freedoms and individual liberties codified in international human rights law and contained in the state constitution; (3) it is in the public interest of this state to attract legally derived foreign capital for investment, revenue enhancement, and other economic de-

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velopment purposes as well as to facilitate tax abatement for residents and businesses in the state; (4) the [Legislature] has the authority, in connection with its effort to improve economic conditions in the state, to treat foreign persons differently than it does the citizens of this state with respect to equal protection of the law; (5) because the Internal Revenue Code prohibits this state from offering the type of tax shelters to American citizens that are available to them in foreign jurisdictions and because few of the conditions prevalent in other countries that give rise to capital flight exist in the United States, this state is both compelled and rationally motivated to offer specialized private financial services exclusively to foreign customers; (6) the state has the competence, capacity, and legitimate authority to charter and regulate financial institutions under the dual banking system of the United States; (7) a prudent blend of financial privacy, asset protection, and profitability may offer foreign depositors unique opportunities to build and preserve their wealth in this state; (8) it is the intent of the [Legislature] to protect both state and national interests by promoting legal and technical standards and procedures to deter, prevent, and detect money laundering and other types of financial crime.

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Section 3. [Definitions.] As used in sections 1 through 46 and 65 through 67, unless the context requires otherwise, the following definitions apply: (1) Bank holding company means a company registered under the federal Bank Holding Company Act of 1956, as amended. (2) Board means the [state banking board] provided for in [insert citation.] (3) Capital means currency that is convertible to U.S. dollars or personal property, including tangible personal property. (4) Cash means currency, cashier s checks, money orders, and other monetary instruments as defined in the Bank Secrecy Act (Public Law 91508). (5) Charter means a certificate issued by the [state banking board] through the [commissioner] to a corporation verifying that the corporation is authorized to conduct business in this state as a foreign capital depository. (6) Commissioner means the [commissioner of banking and financial institutions] provided for in [insert citation.] (7) Controlling person means a person who holds [five (5)] percent or more of the equity in a depository or who is otherwise determined by the [board] to exercise controlling authority over decisions affecting the management and operation of the depository. Suggested State Legislation - 73

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(8) Customer means a person who is using or has used the services of a foreign capital depository or for whom a foreign capital depository has acted as a fiduciary. (9) Department means the [Department of Commerce] established in [insert citation.] (10) Foreign bank means a bank that has its primary office outside the jurisdiction of the United States and is licensed under the laws of a foreign country or a political subdivision of a foreign country. (11) Foreign capital depository or depository means a financial institution incorporated in this state and chartered by the [board] to conduct business as a foreign capital depository in accordance with sections 1 through 46 of this Act. (12) Money laundering is the process through which the existence, illegal source, true ownership, or unlawful application of illicitly derived funds is concealed or disguised to make the funds appear legitimate, thereby helping to evade detection, prosecution, seizure, or taxation. (13) Nonresident alien means a person who is not a citizen or a resident of the United States. (14) Person means an individual, partnership, corporation, limited liability company, association, trust, or other legal entity. (15) Supervisory agency means any of the following: (a) the [attorney general] and the [Department of Justice,] established by [insert citation,] for the purpose of the enforcement of all criminal laws of the state; (b) the [department,] for the purposes of the administration and enforcement of the state laws relating to the examination and supervision of a foreign capital depository; (c) the [commissioner,] for the purposes of the administration and enforcement of the state laws relating to the chartering and supervision of a foreign capital depository; (d) the [board,] for the purposes of chartering a foreign capital depository; (e) the Federal Reserve System, when the chartered depository is a subsidiary of a financial institution domiciled outside the jurisdiction of the United States, for the purposes of examining a foreign capital depository; (f) the [legislative audit division,] established by [insert citation,] for the purposes of the administration of state laws relating to the audit of state agencies and the collection and disbursement of public funds; (g) the [Department of Revenue,] established by [insert citation,] for the purposes of the administration and enforcement of laws relating to the collection of taxes or fees from a foreign capital depository; (h) the [insurance department,] established by [insert citation,] and the [commissioner of insurance,] established by [insert citation,] for the purpose of the administration and enforcement of state laws relating to the

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regulation of an insurer of accounts in a foreign capital depository. (16) Tangible personal property includes platinum, palladium, gold, or silver bullion or coins, precious stones, jewelry, works of art, furnishings, and other objects of value that are not legal tender.

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Section 4. [Charter Required Misrepresentation Cause for Disqualification.] (1) A person may not operate or conduct business as a depository in this state without a charter issued by the [board.] (2) A depository shall post the charter certificate in a conspicuous place. (3) A person who is found by the [commissioner] to have falsely represented to a customer that a charter had been obtained is permanently disqualified from obtaining a charter.

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Section 5. [Protection of Appellation.] A corporation that has not been issued a charter under the provisions of section 8 may not transact business under a name or title that contains the words foreign , capital , and depository in any combination.

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Section 6. [Applicability of Banking Laws.] The provisions of sections 77 through 87 of this Act apply to a foreign capital depository unless a section in sections 1 through 46 and 65 through 67 of this Act or a rule or order issued under sections 1 through 46 and 65 through 67 is inconsistent with any of Sections 77 through 87 of this Act.

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Section 7. [Rulemaking Authority.] (1) The [board] shall adopt rules to implement sections 8, 9, and 12 of this Act. (2) The [department] shall adopt rules to implement sections 13, 14, and 18 of this Act and to specify the conditions under which a depository may be found to be operating in a manner that is unsafe or unsound.

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Section 8. [Charter Eligibility and Application Requirements.] (1) In order to lawfully conduct business in this state as a foreign capital depository, a person intending to own and operate a depository shall: (a) obtain a state charter from the [board] through an application process established by the [commissioner] and administered by the [department;] (b) make and file articles of incorporation in accordance with [insert citation;] (c) submit an application to the [board] on a form provided by the [commissioner.] An application must be accompanied by: (i) documents certifying that the identity of each director, executive officer, and controlling person of the proposed depository has been Suggested State Legislation - 75

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verified by means of a background check; (ii) a written copy of the applicantÂ&#x2019;s know-your-customer policy and a written description of the implementation method for the policy; (iii) a detailed written description of the applicantÂ&#x2019;s personnel training and pre-employment screening programs, physical and technological security systems, and methods of compliance with applicable federal record keeping and reporting laws; (iv) a business plan that includes projections of costs, profitability, and relevant changes in financial markets; (v) the intended location of each depository office in the state; (vi) a document from a certified public accountant confirming that the applicant has financial assets in excess of liabilities in an amount established by [board] rule; (vii) a nonrefundable charter application fee set by the [board] under section 12 to be paid into the foreign capital depository account established in section 17. (2) A foreign capital depository may be a subsidiary of a foreign bank that has obtained approval from the Federal Reserve System to operate in the United States in accordance with the Foreign Bank Supervision Enhancement Act of 1991.

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Section 9. [Charter Application Â&#x2014; Grounds for Denial.] (1) To safeguard the interests and the reputation of the state, the [board] shall deny a charter application if it finds that the applicant planning to operate the depository is not of good character or that the applicant is not financially sound. (2) The [board] may find that the person planning to own, operate, or manage the depository is not of good character or financial integrity if a director, an executive officer, or a controlling person of the applicant has: (a) been convicted of or has pleaded guilty or nolo contendere to any crime involving fraud, theft, conspiracy, racketeering, or money laundering; (b) had a professional or occupational license suspended or revoked based on conduct involving an act of fraud or dishonesty; (c) willfully made or caused to be made false or misleading statements in an application or report to the [commissioner] or has willfully omitted facts required in the report; (d) willfully violated a provision of section 4 or 8 or aided, abetted, counseled, commanded, induced, or procured the violation by another person of a provision of section 4 or 8. (3) Subsections (1) and (2) are not exclusive of other grounds on which the [board] may determine that an applicant for a depository charter is not of good character and therefore may not receive a charter. (4) The [board] may authorize the [commissioner] to conduct or obtain

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from a private investigative service a background check on any director, executive officer, or controlling person of the depository for the purposes of determining whether an applicant is of good character. (5) The [board] shall adopt rules concerning the method and process for determining whether an applicant for a charter is financially sound.

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Section 10. [Suspension, Revocation, and Restoration of Charter.] (1) The [board] may suspend or revoke the charter of a depository if the [board] finds that the depository or any director, executive officer, or controlling person of the depository has: (a) violated a provision of sections 1 through 46, a rule of the [department] established pursuant to sections 1 through 46, the Bank Secrecy Act, or any mplementing regulation of the Bank Secrecy Act; (b) failed to comply with an order of the [commissioner;] (c) operated in a manner or condition that is unsafe or unsound; (d) become insolvent in that the depository has ceased to pay its debts in the ordinary course of business, it is unable to pay debts as they come due, or its liabilities exceed its assets; (e) filed a petition for an adjudication of bankruptcy; (f) knowingly made a false statement or report to the [department;] (g) failed to pay the [Department of Revenue] the fee, penalty, or interest owed pursuant to sections 58 through 60 before [5 p.m. on the last day of the 11th month] after the date a deficiency assessment is mailed; or (h) if the depository is a subsidiary of a foreign bank holding company or another type of financial institution, had its operating license suspended or revoked in the country where the parent company is domiciled. (2) Before suspending or revoking a charter, the [board] shall conduct a hearing in accordance with the state [Administrative Procedure Act] relating to a contested case. (3) On the recommendation of the [department,] the [board] may reinstate a charter that has been suspended or revoked if the [board] finds that the depository has restored its integrity and financial soundness. (4) At no time during or following the suspension, revocation, or reinstatement of a charter may a financial record pertaining to an individual account be disclosed except in accordance with rules for the conduct of examinations in section 15 or in accordance with sections 29 through 46 of this Act.

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Section 11. [Administrative Orders by Commissioner.] (1) In addition to or in lieu of the [boardÂ&#x2019;s] suspending or revoking the charter issued to a foreign capital depository, the [commissioner] may: (a) issue a cease and desist order that specifies the activity that the depository may not undertake for the duration of the order; (b) require a depository to take action as determined by the [comSuggested State Legislation - 77

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missioner;] or (c) order the depository to pay a civil penalty in an amount not to exceed [ten thousand (10,000)] dollars for each violation or, in the case of a continuing violation, [ten thousand (10,000)] dollars for each day during which the violation continues. (2) Orders issued by the [commissioner] pursuant to this section must be issued in compliance with the contested case procedure of the state [Administrative Procedure Act.]

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Section 12. [Application, Charter, and Renewal Fee.] (1) An applicant for a state charter shall pay a fee established by the [board] by rule. The application fee must be commensurate with the cost of conducting a background check on the person applying for the charter. (2) A successful applicant for a state charter shall pay to the [department] an initial charter fee of [fifty thousand (50,000)] dollars, less the amount paid for the application fee pursuant to subsection (1). (3) A depository shall pay an annual charter renewal fee in an amount set by the [board] by rule but not to exceed [ten thousand (10,000)] dollars. (4) Fees collected pursuant to subsections (1) through (3) must be deposited in the [foreign capital depository account] established in section 17.

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Section 13. [Regulation and Supervision Â&#x2014; Rules.] (1) To ensure that the department meets its responsibility for the prudential supervision of a foreign capital depository, the [department] shall adopt rules that: (a) determine the processes and procedures necessary to ensure that the controlling persons and employees and the procedures of a depository are in compliance with sections 1 through 46 and 65 through 67; (b) establish the procedures for the conduct of examinations of a depository by the [department,] including the means by which the [commissioner] will verify that the depositoryÂ&#x2019;s know-your-customer policy has been implemented; (c) establish the form of suspicious activity reports and the conditions under which a suspicious activity report must be filed with the [department;] (d) require a depository to submit to the [department] on request a written or electronic record of any transfer or withdrawal of cash from the depository in an amount equal to or greater than [ten thousand (10,000)] dollars; (e) require a depository to file an annual report with the [department] detailing the depositoryÂ&#x2019;s: (i) security measures designed to deter and prevent theft, fraud, and corruption; (ii) procedures for filing suspicious activity reports with the

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U.S. Department of the Treasury and for keeping records and filing reports of transactions as required by federal law and regulation to combat money laundering and other criminal activities; (iii) employee training programs regarding disclosure and other aspects of customer financial privacy; and (iv) fulfillment of the know-your-customer policy recommended by the American Bankers Association or prescribed by federal regulation. (2) With respect to an action concerning the issuance, suspension, or revocation of a charter or an action pursuant to enforcement in sections 65 through 67, the [department] shall adopt rules to determine pre-hearing discovery procedures, including the taking of depositions and the production of documents. (3) In adopting rules for hearings, the [department] shall provide for the issuance of subpoenas and for the administration of oaths to witnesses and parties or their representatives to apply both to discovery procedures and to hearings.

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Section 14. [Costs of Regulation.] A depository shall pay to the [department] an annual fee established by rule that is commensurate with the cost of conducting examinations of a depository by the [department.] The proceeds of the fee established by the [department] must be deposited in the [foreign capital depository account] created by section 17.

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Section 15. [Examinations.] (1) Except as provided in subsection (5), the [department] shall: (a) examine, at least once every [twelve (12)] months, each depository to: (i) verify the depository s assets and liabilities; (ii) ascertain the accuracy of the depository s books and records; and (iii) determine whether the depository s methods of operation and conduct of business are in compliance with applicable laws and rules; and (b) submit in writing to a depository examined in accordance with subsection (1)(a) a report of the examination s findings no later than [sixty (60)] days after the completion of the examination. (2) A controlling person or employee of a foreign capital depository shall exhibit to the [department] or an examiner from the Federal Reserve System on request the books, records, and accounts of the depository, except that the identity of a customer may not be disclosed to the [department] or any examiner unless the disclosure is necessitated by the [department s] procedure for verifying that the depository s know-your-customer policy has been implemented effectively. (3) The [department] may issue subpoenas and administer oaths to any Suggested State Legislation - 79

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director, executive officer, controlling person, or employee of a foreign capital depository. In case of a refusal to obey a subpoena issued by the [department], the refusal may be reported to the [District Court] of the district in which the depository is located. The [Court] shall enforce obedience to the subpoena in the manner provided by law for enforcing obedience to the process of the court. (4) If a depository charter is issued to a foreign bank, the [department] may conduct an examination of the depository: (a) in conjunction with supervisory personnel from the Federal Reserve System, or; (b) without the assistance of Federal Reserve System personnel. (5) The [department] may accept as the examination of a depository required by this section the findings or results of an examination conducted by the Federal Reserve System. (6) A foreign capital depository shall keep its corporate records, financial records, and books of account in words and figures of the English language, in this state, and in a form satisfactory to the [department.] (7) If a foreign capital depository is issued a charter to maintain [two (2)] or more offices in the state, the depository shall designate one of its offices as its primary office for the purposes of keeping consolidated records and facilitating examinations by the [department.]

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Section 16. [Special Examinations Â&#x2014; Costs.] (1) Whenever in the judgment of the [commissioner] the condition of a depository or the actions of a customer necessitate an examination beyond that required by section 15, the [department] may conduct additional examinations determined to be necessary and in connection with the additional examinations may charge the depository: (a) an amount not to exceed [four hundred (400)] dollars a day for each examiner engaged in the examination of the depository; (b) the actual cost of travel expenses of the examiner in the event that travel outside this state is determined necessary by the [commissioner;] and (c) a reasonable amount to recover the actual costs of counsel and other [department] resources. (2) The money collected by the [department] pursuant to examination fees must be deposited in the [foreign capital depository account] established in section 17.

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Section 17. [Foreign Capital Depository Account.] (1) A [Foreign Capital Depository Account] is hereby created in the state [special revenue fund.] Except for revenue derived in accordance with sections 58 through 60, money from the foreign capital depository must be deposited in the [account.]

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(2) The money in the [account] may be appropriated by the [Legislature] to the [department] solely for the [department s] use in meeting its supervisory and regulatory obligations established in sections 12 through 16.

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Section 18. [Reports Contents and Restrictions.] (1) A depository shall make a report to the [department] in the manner and at the time required by the [commissioner.] (2) A report filed with the [department] must: (a) contain the information required by rule; and (b) be verified by [two (2)] of the depository s executive officers. The verification must state that each of the officers making the verification has a personal knowledge of the matters in the report and that each of them believes that each statement in the report is true. (3) A depository may not include any financial record, as defined in section 30, of any customer in the report. (4) The [department] may provide a copy of the report to another supervisory agency.

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Section 19. [Record Keeping and Reporting Suspicious Activity.] In addition to compliance with applicable provisions of the Bank Secrecy Act, a foreign capital depository shall: (1) keep a written or electronic record of each wire transfer or other electronic means of transferring capital to the depository for at least [five (5)] years when the transfer involves [three thousand (3,000)] dollars or more; and (2) comply with federal regulation and rules of the [department] concerning the form of a suspicious activity report and the conditions under which a suspicious activity report is required to be reported to a supervisory agency or to the U.S. Department of the Treasury.

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Section 20. [Sale or Transfer of Charter Prohibited Penalty.] (1) A charter issued by the [board] may not be sold, traded, transferred, or otherwise assigned to another corporation. (2) A person who attempts to sell, trade, or transfer a depository charter or who knowingly accepts a depository charter in violation of subsection (1) is subject to civil and criminal penalties pursuant to sections 66 and 67.

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Section 21. [Dissolution Closing.] (1) The [board] may, upon a finding of negligence, misconduct, or any of the conditions specified in section 9 dissolve the charter of a depository and remove any directors, executive officers, or employees prior to the dissolution in accordance with the provisions of [insert citation.] (2) The [department] may close a depository and take possession of the Suggested State Legislation - 81

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books, records, and assets of the depository and hold them until the depository is authorized by the [board] to resume business or until its affairs are liquidated in accordance with [insert citation.] (3) Except in accordance with the provisions in sections 29 through 46, an individual financial record may not be disclosed in the process of dissolving or closing a depository, and the penalties for wrongful disclosure in sections 29 through 46 apply to the [board,] the [department], and the depository. (4) A foreign capital depository may not close its primary office or cease operations without the written approval of the [department.] (5) Voluntary dissolution of a depository must comply with the provisions of [insert citation.]

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Section 22. [Depository Services Â&#x2014; Allowed and Mandated.] (1) A depository may: (a) accept deposits in any currency or electronic form convertible to U.S. dollars; (b) provide safe deposit and other storage services for the purpose of protecting the security of a customerÂ&#x2019;s tangible personal property; (c) convert cash deposits to purchase orders for platinum, palladium, gold, or silver bullion on behalf of or at the direction of a customer; (d) purchase, sell, and pay interest to the customer derived from tax-exempt federal, state, county, or municipal bonds on behalf of or at the direction of a customer; (e) provide a customer with foreign currency in exchange for U.S. dollars in an equivalent monetary amount; (f) perform trust and related fiduciary services, as provided in [insert citation,] but only if the depository has obtained a certificate from the [department] authorizing the depository to act as a trust company or the subsidiary of a trust company prior to engaging in trust activities; (g) issue a debit card or an automatic teller machine card to a customer; (h) charge interest in relation to a customerÂ&#x2019;s use of a debit or automatic teller machine card; (i) establish different types of deposit accounts for customers; (j) offer deposit or safe deposit insurance provided under contract with a financial guaranty insurer approved by the [insurance commissioner;] (k) charge fees related to the opening, management, and insuring of deposit accounts, the storage and maintenance of tangible personal property, the establishment and administration of trust accounts, and other lawful investment, legal, or financial services; (l) set underwriting standards for each type of account that it offers to a customer; and (m) establish a minimum deposit amount for any type of account as

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long as the minimum is not less than [two-hundred thousand (200,000)] dollars. (2) A depository may in its discretion refuse an application for an account of any type. (3) A depository shall: (a) exercise extraordinary diligence in determining the genuine identity of a customer; (b) protect the privacy of each customer as provided in sections 29 through 46; (c) in accordance with sections 47 through 55, provide legal defense of a customer at the customer s request or on the request of the customer s legal representative in the event a civil judgment rendered against the depositor in a jurisdiction outside the United States is registered in this state; (d) with respect to [precious metals] accounts in sections 25 through 28, comply with the statutory protections against securities fraud under [insert citation;] (e) comply with federal reporting and record keeping requirements as provided in the Bank Secrecy Act, the Money Laundering Control Act of 1986, the Annunzio-Wylie Anti-Money Laundering Act, and implementing regulations of each of those Acts concerning money laundering and other financial crimes.

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Section 23. [Depository Services Restrictions and Prohibitions.] (1) A depository may not accept a deposit: (a) from an individual who is a citizen or a resident of the United States; (b) from a corporation, trust, or partnership if any shareholder, settlor, member, beneficiary, or partner is a citizen or a resident of the United States; (c) in an amount valued at less than [two-hundred thousand (200,000)] dollars in U.S. dollars. (2) A depository may not: (a) provide services to any customer who is not a nonresident alien; (b) engage in lending or any related commercial banking services as defined in the Bank Act, except: (i) in a case in which fiduciary lending is necessitated by a trust obligation and the depository has obtained a certificate from the [department] authorizing the depository to act as a trust company or the subsidiary of a trust company; or (ii) in relation to a precious metals account as provided in sections 25 through 28; (c) transfer [ten thousand (10,000)] dollars or more of a customer s cash on deposit to another financial institution inside or outside the jurisdiction of the United States without submitting a record of the transaction Suggested State Legislation - 83

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to the [commissioner] and the [attorney general] that includes the customer s name, last-known address, and if the customer is an individual, passport number; (d) accept a deposit from a customer who has been convicted of a state or federal felony in the United States or from a corporation of which a controlling person has been convicted of a state or federal felony in the United States.

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Section 24. [Sale or Trade of Deposit Accounts Prohibited Transfers Allowed.] (1) The [Legislature] does not intend to create or facilitate the creation of a secondary market for depository accounts. Therefore, except for the condition set forth in subsection (2), the sale or trade of a deposit account by a depository is prohibited. (2) A depository may permit the legal transfer of a deposit account from a customer to the customer s heir, spouse, or designated next of kin for the purposes of estate preservation and maintenance.

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Section 25. [Precious Metals Accounts Purpose.] (1) The [Legislature] acknowledges that: (a) this state is both a major [gold] producer and the only domestic source of commercially significant amounts of [platinum and palladium,] [precious metals] that have diverse uses in addition to serving as a store of exchangeable value; (b) many nonresident aliens and foreign corporations place great value in the security inherent in [precious metals] as a hedge against currency depreciation, currency devaluation, and general inflation and prefer [precious metals] over other types of investments that may offer a higher or more certain rate of return; (c) the expansion of the processing and refining capacity of the [platinum and palladium] mining operations in the state may provide unique investment opportunities for nonresident aliens and a significant stimulus for economic development in the state; and (d) helping to establish financial links between customers of the depository and products of the [precious metals] depository is in the economic interest of the state. (2) The [Legislature] further recognizes its responsibility to help deter money laundering and other financial crime and therefore acknowledges that restricting the liquidity of a [precious metals] account will reduce significantly any incentive there may be for a person to use a [precious metals] account for illicit purposes.

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Section 26. [Definition.] For the purposes of sections 1 through 46, a [precious metals] account is a depository account in which the depository,

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upon instructions of a customer, exchanges cash for a commensurately valued amount of [platinum,] [palladium,] [gold,] or [silver bullion] procured by the depository for the primary purpose of safekeeping over an extended period of time.

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Section 27. [Account Requirements Provisions.] (1) An agreement between the depository and a customer to establish a [precious metals] account must include the following provisions: (a) a term of maturity that is not less than [thirty-six (36)] months; (b) a penalty for early withdrawal of an amount of [precious metals] that exceeds [twenty (20)] percent of the monetary value of the total amount of [precious metals] in the account, with the monetary value to be equivalent to the spot market price of the [precious metal] listed in The Wall Street Journal on the date of the withdrawal; (c) a requirement that the [precious metals] purchased by a customer be delivered to the depository within [seven (7)] days of verified payment of any part of the purchase price. (2) A [precious metals] account may provide for limited withdrawal from the account by means of a debit card or an automatic teller machine card as long as the total amount withdrawn from the account prior to the maturity date established in subsection (1)(a) does not exceed [twenty (20)] percent of the total monetary value of the [precious metals] in the account. (3) A depository may charge a customer interest and a fee in relation to a cash withdrawal made in accordance with subsection (2).

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Section 28. [Termination Settlement.] (1) Upon termination of a [precious metals] account, whether at or before the date of maturity, the terms of settlement must allow: (a) the depository to convert the [precious metals] to currency at the spot market rate on the day of settlement; and (b) the depository s right to delay settlement for not more than [five (5)] business days.

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Section 29. [Financial Privacy Purpose.] The [Legislature] finds and declares that: (1) the viability of one or more foreign capital depositories in this state depends to a large extent upon both the secure nature of the depository and the confidential nature of customer accounts and safe deposits in the depository and upon the confidential nature of transactions between a customer and a depository. Therefore, the purpose of sections 29 through 46 is to clarify and protect the confidential relationship between foreign capital depositories and their customers and to balance a customer s right of privacy with the governmental interest in obtaining information for specific purposes and by specified procedures as set forth in sections 29 through 46. Suggested State Legislation - 85

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The confidential relationship between a foreign capital depository and its customers is to be protected by restrictions on the disclosure of financial records to supervisory agencies and a prohibition against disclosure of financial records to other state and local agencies and to private individuals except under specified conditions. (2) a state offering secure and confidential depository services to its customers must be mindful that significant amounts of capital are derived from or moved for illegal purposes and that the United States and other jurisdictions have passed laws and worked diligently to prevent money laundering and other offenses from being conducted as part of otherwise lawful transactions; (3) in licensing and supervising the operation of one or more foreign capital depositories, this state needs to enforce its own criminal laws vigorously. It is also imperative that this state cooperate with United States law enforcement and other authorities to effectively deter and, when deterrence fails, detect, investigate, and prosecute perpetrators of financial crimes. (4) the purpose of sections 29 through 46 is not to avoid the application of the Bank Secrecy Act, the Right to Financial Privacy Act of 1978, the Money Laundering Control Act of 1986, and the Annunzio-Wylie Anti-Money Laundering Act, which are intended to prevent or deter money laundering and other financial crimes while maintaining a degree of secrecy of customer bank accounts from federal agencies, but rather to apply state law in those areas unregulated by these and other relevant federal laws. However, it is the intent of the [Legislature] that if there is a clear and direct conflict between sections 29 through 46 and applicable federal statutes, treaties, or regulations that cannot be resolved by other means, then the state law should be pre-empted in order to maintain the efficacy and integrity of United States laws intended to combat financial crimes.

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Section 30. [Definitions.] Unless the context requires otherwise, in sections 29 through 46, the following definitions apply: (1) Financial institution includes state and national banks, state and federal savings and loan associations, trust companies, investment companies, and state and federal credit unions. The term does not include a title insurer while engaging in the conduct of the business of title insurance, an underwritten title company, or an escrow company. (2) (a) Financial record means: (i) an original or copy of a record or document held by a foreign capital depository that directly or indirectly pertains to a customer of the depository; (ii) information contained in the original or copy of the record or document; or (iii) the name of a customer. (b) A record or document may, for the purposes of this subsection

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(2), be in a paper, electronic, or other format. (3) Investigation includes an inquiry by a peace officer, as defined by [insert citation,] a sheriff, or a county attorney or an inquiry made for the purpose of determining whether there has been a violation of a law enforceable by imprisonment, fine, or monetary liability. (4) Local agency includes a county, city, town, or other local government entity. (5) State agency means an office, department, division, bureau, board, or commission of state government that is not a supervisory agency, including the [Legislature.] (6) Subpoena includes subpoena duces tecum.

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Section 31. [Request or Receipt of Records and Information Prohibited Exceptions Records to be Maintained]. (1) Except as provided in sections 39 and 40 and this section, an officer, employee, or agent of a state or local agency may not request or receive a copy of a financial record from a foreign capital depository unless the financial record is consistent with the scope and purpose of any investigation by the state or local agency, is described with particularity, and: (a) the customer has authorized disclosure of the financial record in accordance with section 34; (b) the financial record is disclosed in response to an administrative subpoena that meets the requirements of section 35; (c) the financial record is disclosed in response to a search warrant that meets the requirements of section 36; or (d) the financial record is disclosed in response to a judicial subpoena that meets the requirements of section 37. (2) The burden of proving that a required disclosure of a financial record is consistent with the scope and purpose of an investigation is upon the state agency or the local agency requiring disclosure of the financial record. (3) Nothing in sections 34, 35, 36, or 37 or this section requires a foreign capital depository to inquire or determine whether a person seeking disclosure of a financial record has complied with the requirements of those sections if the customer authorization, administrative subpoena, search warrant, or judicial subpoena served upon or delivered to the depository pursuant to any of those sections shows compliance on its face. (4) A foreign capital depository shall maintain for a period of [five (5)] years a record of all disclosures by a depository of the financial records of a customer pursuant to sections 29 through 46, including the identity of the person examining the financial records, the state or local agency that the person represents, and a copy of the customer authorization, administrative subpoena, search warrant, or judicial subpoena providing for examination or disclosure. A record of disclosures maintained pursuant to this subsection must be available, within [five (5)] days of request, during normal Suggested State Legislation - 87

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business hours of the depository for review by the customer at the office or branch of the depository where the customerÂ&#x2019;s account or safe deposit box was located when examined. A paper or electronic copy of the record of disclosures must be furnished by the depository to the customer upon request by the customer. (5) This section does not prevent a state or local law enforcement agency from initiating contact with a foreign capital depository if there is reason to believe that the depository is a victim of a crime perpetrated by a customer. After contact by a law enforcement agency, if the foreign capital depository reasonably believes it is a victim of a crime, it may, in its discretion, disclose relevant financial records pursuant to section 32(2). Conviction of or admission by a customer of a crime against the depository is conclusive on the issue of the reasonable belief of the depository.

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Section 32. [Disclosure of Record to Agency Prohibited Â&#x2014; Exceptions.] (1) Except as provided in section 40 and this section, a foreign capital depository and a director, executive officer, controlling person, or employee of a foreign capital depository may not provide or authorize another person to provide a financial record to an officer, employee, or agent of a state or local agency. (2) This section does not preclude a foreign capital depository, in its discretion, from initiating contact with and disclosing a relevant financial record to a supervisory agency concerning a suspected violation of state or federal law if the depository reasonably believes that a violation of law has been committed. Conviction of or admission by a customer of a crime is conclusive on the issue of the reasonable belief of the depository.

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Section 33. [Disclosure of Record to Private Individual Prohibited Â&#x2014; Exceptions.] (1) Except as provided in section 40 and this section, a foreign capital depository and a director, executive officer, controlling person, or employee of a foreign capital depository may not provide or authorize another person to provide a financial record to an individual who is not an officer, employee, or agent of a state or local agency acting pursuant to state law or local ordinance or to an officer, employee, or agent of the United States acting pursuant to federal law. (2) This section does not preclude a foreign capital depository, in its discretion, from initiating contact with and disclosing a relevant financial record to an appropriate state, local, or federal agency concerning a suspected violation of state or federal law if the depository reasonably believes that a violation of law has been committed. Conviction of or admission by a customer of a crime is conclusive on the issue of the reasonable belief of the depository.

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Section 34. [Customer Authorization Â&#x2014; Form Â&#x2014; Notice to Customer.] (1) A director, executive officer, controlling person, or employee of a foreign capital depository may disclose or authorize another to disclose a financial record and an officer, employee, or agent of a supervisory, state, or local agency may obtain a financial record if the customer to whom the record relates has authorized disclosure of the record on a form provided by the depository that: (a) is signed and dated by the customer; (b) authorizes disclosure for a period set forth in the authorization statement; (c) specifies the name of the person, supervisory agency, state agency, or local agency to whom or to which disclosure is authorized and, if applicable, the statutory purpose for which the information is to be obtained; and (d) identifies the financial record authorized to be disclosed. (2) A foreign capital depository may not require a customer authorization to be signed by a customer as a condition of doing business with the depository. (3) A customer may revoke an authorization by written notice to the foreign capital depository. The notice must contain a copy of the authorization to which it relates or contain the information originally required in the authorization to which it relates, must be signed and dated by the customer, and must contain a clear statement revoking the previous authorization. (4) (a) A supervisory, state, or local agency obtaining a financial record pursuant to a customer authorization shall notify the customer in writing of the receipt of the financial record within [thirty (30)] days of the agencyÂ&#x2019;s receipt of the financial record. However, by application to a judge of a court of competent jurisdiction in the county in which the financial record is located and upon a showing of good cause to believe that disclosure would impede the investigation, the notification requirements of this subsection (4)(a) may be extended for up to [two (2)] additional [thirty (30)] day periods. Thereafter, by application to a court upon a showing of extreme necessity for nondisclosure, the notification requirements of this subsection (4)(a) may be extended for up to three additional [thirty (30)] day periods. At the end of that period or periods, the agency shall inform the customer that the customer has the right to make a written request as to the reason why the agency obtained the record. The notice must specify the financial record that was obtained and, if requested, the reason why the record was obtained. (b) Whenever practicable, an application for an additional extension of the notification time provided in subsection (4)(a) must be made to the judge who granted the first extension of notification time. In deciding whether to grant an extension of the notification time, the judge shall proSuggested State Legislation - 89

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vide the customer with prompt notification, consistent with the purpose of sections 29 through 46.

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Section 35. [Administrative Subpoena.] (1) A director, executive officer, controlling person, or employee of a foreign capital depository may disclose or authorize another to disclose a financial record and an officer, employee, or agent of a supervisory, state, or local agency may obtain a financial record under section 31(1)(b) pursuant to an administrative subpoena otherwise authorized by law and served upon the foreign capital depository only if: (a) the person issuing the administrative subpoena has served a copy of the subpoena on the customer pursuant to [insert citation;] (b) the subpoena includes the name of the agency in whose name the subpoena is issued and the statutory purpose for which the record is to be obtained; and (c) [ten (10)] days have passed after service of the subpoena without the foreign capital depository or the customer moving to quash the subpoena. (2) (a) The supervisory, state, or local agency issuing the administrative subpoena may not shorten or waive the requirements of subsection (1). However, the agency may petition a court of competent jurisdiction in the county in which the record is located, and the court, upon a showing of a reasonable inference that a law enforceable by the petitioning agency has been or is about to be violated, may order that service upon the customer pursuant to subsection (1)(a) or the [ten (10)] day period provided for in subsection (1)(c) be waived or shortened. (b) For the purpose of this subsection (2), an Â&#x201C;inferenceÂ&#x201D; is a deduction that may reasonably be drawn by the [attorney general] or the [county attorney] from facts relevant to the investigation. (c) The petition may be presented to the court in person or by telephoned oral statement, which must be recorded and transcribed. In the case of telephonic petition, the recording of the sworn oral statement and the transcribed statement must be certified by the judge receiving it and must be filed with the clerk of the court. (3) Except as provided in subsection (2) and this subsection, a foreign capital depository shall immediately notify a customer of the receipt of an administrative subpoena for a financial record of that customer. A court may order a depository to withhold notification to a customer of the receipt of an administrative subpoena when the court issues an order pursuant to subsection (2) and makes a finding that notice to the customer by the financial institution would impede the investigation.

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Section 36. [Search Warrants.] A director, executive officer, controlling person, or employee of a foreign

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capital depository may disclose or authorize another to disclose a financial record and an officer, employee, or agent of a supervisory, state, or local agency may obtain a financial record under section 31(1)(c) only if the officer, employee, or agent obtains a search warrant pursuant to [insert citation.] Examination of a financial record may occur as soon as the warrant is served upon the foreign capital depository. A foreign capital depository shall notify a customer of the receipt of a search warrant unless a court orders the depository to withhold notification to the customer upon a written finding that notice would impede the investigation.

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Section 37. [Judicial Subpoena.] (1) A director, executive officer, controlling person, or employee of a foreign capital depository may disclose or authorize another to disclose a financial record and an officer, employee, or agent of a supervisory, state, or local agency may obtain a financial record under section 31(1)(d) pursuant to a judicial subpoena only if one of the following has occurred: (a) the subpoena is issued as otherwise authorized by law and served in compliance with [insert citation] and the requirements of subsections (1)(b), (1)(c), or (1)(d) have been met. In the event that actual service on the customer is not prohibited but has not been made prior to the time the financial record is required to be produced in response to the subpoena, the court shall, prior to turning over a record to the agency and upon good cause shown, make a finding that due diligence has been exercised by the agency in its attempt to effect service upon the customer. (b) [Ten (10)] days have passed after service of the subpoena on the customer and the depository without the customer or the depository having moved to quash the subpoena; (c) the subpoena has been served upon the customer and the depository and a judge in a judicial proceeding to which the customer or the depository is a party rules that the subpoena should not be quashed. This subsection (1)(c) is not intended to preclude appellate remedies that may be available under existing law. (d) the subpoena has been served upon the depository and a court orders that service of the subpoena upon the customer be delayed in accordance with this section. Service may be delayed for up to [thirty (30)] days from the date of issuance of the judicial subpoena after the court makes a finding upon a written showing that service upon the customer would impede the investigation. The withholding of notification may be extended for additional [thirty (30)] day period if a court makes a finding upon a written showing, at the time of each extension, that service upon the customer would impede the investigation. Whenever practicable, an application for an extension of time must be made to the judge who issued the judicial subpoena. In deciding whether to grant an extension of the notification time, the judge shall endeavor to provide the customer with prompt notification, Suggested State Legislation - 91

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consistent with the purpose of sections 29 through 46. (2) If testimony is to be taken concerning a financial record or if a financial record is to be produced before a court, the [ten (10)] day period provided for in subsection (1)(b) may be shortened by the court upon a showing of good cause. The court shall direct that all reasonable measures be taken to notify the customer within the shortened time period. The motion to quash the subpoena must be made, whenever practicable, in the judicial proceeding pending before the court. (3) (a) A grand jury, upon resolution adopted by a majority of its members, may obtain financial records pursuant to a judicial subpoena based upon a written showing to a judge that there exists a reasonable inference that a crime within the jurisdiction of the grand jury has been committed and that the financial record sought is reasonably necessary to the jury s investigation of that crime. The judicial subpoena must be personally signed and issued by a judge in accordance with [insert citatio ] and must otherwise comply with the requirements of this section. (b) For the purpose of this subsection (3), an inference is a deduction that may be reasonably drawn by the grand jury from facts relevant to the investigation. (4) A showing required to be made pursuant to this section, as well as the court record of any finding made pursuant to the showing, must be sealed until [one (1)] person named in the indictment to which the showing related has been arrested or until the end of the term of the grand jury if no indictment to which the showing relates has been returned. However, a court may unseal the showing and the court record relating to the showing on a written showing of good cause.

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Section 38. [Grounds for Quashing Subpoena Duty of Depository.] (1) A customer or a foreign capital depository has [ten (10)] days after service of an administrative or judicial subpoena upon either of them to file a motion to quash the subpoena before the administrative agency issuing the subpoena or a court with jurisdiction over the subpoena. The motion to quash may be based upon [one (1)] or more of the following grounds: (a) the financial record sought is incompetent, irrelevant, or immaterial for the purpose for which it is sought; (b) the release of the financial record would cause an unreasonable burden or hardship under the circumstances upon the customer or the depository; (c) the supervisory, state, or local agency or other person seeking the financial record is attempting to harass the customer or the depository; (d) there is no merit in the purpose for which the financial record is sought; or (e) the supervisory, state, or local agency or other person has not made a reasonable effort to first obtain the financial record or the equiva-

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lent of the record from some other source other than the depository, if some other source exists. (2) A foreign capital depository shall move on the basis of all appropriate grounds, including those set forth in subsection (1), to quash an administrative or judicial subpoena if the customer or the agent of the customer to whom the record relates has not received actual notice of the subpoena. If a foreign capital depository cannot determine from the customer or the customerÂ&#x2019;s agent whether the customer or the agent has received actual notice of the subpoena, the depository shall move to quash the subpoena unless the customer and the depository have agreed in writing to the contrary. (3) Failure of the customer or the depository to file a motion to quash the subpoena before the time established for the return of the subpoena constitutes a waiver of the right to object to the release or disclosure of the financial record. (4) During the period for the filing of a motion to quash and continuing until a ruling is made upon a motion to quash, the depository shall, unless prohibited by the court, make available to its customer a copy of the subpoenaed financial record and shall preserve the original record without alteration. (5) If a depository or a customer files a motion to quash an administrative or judicial subpoena issued pursuant to section 35 or 37, the proceeding must be afforded priority on the calendar of the agency or the court. (6) A depository may charge a customer a fee for the reasonable cost of representing the interests of the customer pursuant to this section.

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Section 39. [Limitations on Use of Financial Record.] (1) The original or a copy of a financial record obtained by a state or local agency or another person pursuant to sections 29 through 46 may not be used or retained in any form for a purpose other than the statutory purpose for which the record was originally obtained. The statutory purpose must be determined with reference to the statute, rule, or other law sought to be enforced in the proceeding for which the record was obtained. (2) A state or local agency may not provide a financial record obtained pursuant to sections 29 through 46 to another state or local agency unless the other agency has independently obtained authorization to receive the financial record pursuant to sections 29 through 46. This subsection does not prohibit: (a) the transfer by one supervisory agency that obtained a financial record pursuant to section 40(1)(c) to another supervisory agency or supervisory agencies if that transfer otherwise complies with subsection (1); or (b) the transfer of a financial record obtained pursuant to section 36 by one criminal justice agency to another criminal justice agency in accordance with [insert citation.] Suggested State Legislation - 93

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(3) A supervisory, state, or local agency or a court obtaining a financial record by administrative subpoena, search warrant, or judicial subpoena shall, at the request of a customer or foreign capital depository, provide for the in-camera review of the record to determine whether the record contains material that is not expected to be the subject of the investigation, inquiry, or proceeding. The supervisory, state, or local agency or the court shall liberally grant requests for in-camera hearings, protective orders, and other appropriate processes to protect the confidential nature of a financial record. The agency or court may permit public disclosure of a financial record only if it finds that disclosure is necessary for the fair resolution of an issue before it. (4) Documents of a supervisory, state, or local agency and documents produced in court containing a financial record must be sealed by the agency or court at the conclusion of the proceedings in order to prevent access to the record and may be opened only for good cause shown.

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Section 40. [ Authorized Disclosures of Financial Records.] (1) Sections 29 through 46 do not prohibit: (a) disclosure by a foreign capital depository of a financial record that is not identified with or identifiable as being derived from a financial record of a particular customer by name; (b) disclosure by a foreign capital depository to a department, agency, office, bureau, or commission of the United States of a financial record when required by federal statute or regulation or when required pursuant to the terms of a treaty or other agreement between the United States and the government of a foreign country; (c) disclosure of a financial record by a foreign capital depository to a supervisory agency when the disclosure is conducted in response to an exercise of the agencyÂ&#x2019;s supervisory function. The scope of an agencyÂ&#x2019;s supervisory function must be determined by reference to statutes granting authority to examine, audit, or require reports concerning a financial record or foreign capital depository. (2) Whenever the request, order, demand, or other requirement for disclosure of a financial record prohibits the release to a customer of the facts of a disclosure, a foreign capital depository may not disclose either the fact or nature of the request, order, demand, or other requirement for disclosure or the depositoryÂ&#x2019;s response to a customer or to any other person, except the officers and employees of the depository who are involved in responding to the request and to attorneys, auditors, and regulatory authorities who have a need to know in order to perform their duties and except as disclosure may be required by legal process.

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Section 41. [Fee Paid to Foreign Capital Depository for Disclosure of Record.]

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Except for a supervisory agency, a state agency or local agency obtaining a financial record in accordance with section 34, 35, 36, or 37 shall pay to the depository providing the financial record a reasonable fee commensurate with the depository s costs of searching for, assembling, copying, labeling, and transporting the financial record in question.

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Section 42. [Confidentiality Supervisory Agency Personnel Penalty for Violation.] (1) Except as required by judicial order or as otherwise provided by section 13 and sections 29 through 46, an employee of a supervisory agency who conducts an examination, investigation, or audit of a depository or who receives a report or another type of information about a depository from another employee of a supervisory agency may not disclose the identity of a customer to another person who is not officially associated with an examination, investigation, or audit of a depository. (2) A person who knowingly violates subsection (1) must be removed from office and is guilty of a felony. Upon conviction, the person shall be punished by a fine of [ten thousand (10,000)] dollars, by imprisonment in the state prison for not more than [ten (10)] years, or by both fine and imprisonment.

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Section 43. [Civil Liability for Wrongful Disclosure of Financial Record Damages and Injunctive Relief.] (1) A state or local agency that requests or receives a financial record in violation of sections 29 through 46 is liable to the customer to whom the record relates in the amount of damages provided in subsection (4). (2) A person who is not employed by a supervisory, state, or local agency or by a foreign capital depository and who requests or receives a financial record in violation of sections 29 through 46 is liable to the customer to whom the record relates in the amount of damages provided in subsection (4). (3) A director, executive officer, controlling person, or employee of a foreign capital depository who discloses or authorizes another to disclose a financial record in violation of sections 29 through 46 is liable to the customer to whom the record relates in an amount of damages provided in subsection (4). (4) Damages are equal to the sum of the following: (a) [ten thousand (10,000)] dollars, without regard to the type or number of records involved; (b) actual damages sustained by the customer; and (c) costs incurred in the action to successfully enforce liability under this section, together with reasonable attorney fees. (5) A foreign capital depository may exercise remedies provided in this section on behalf of a customer and in connection with the exercise of those Suggested State Legislation - 95

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remedies may act as the real party in interest. Damages recovered by the depository must be deposited in an account of the customer, but a depository may retain amounts recovered for its costs and reasonable attorney fees. (6) The remedies provided in this section are not exclusive. (7) In addition to any other remedy allowed by law, a customer may bring an action for injunctive relief under [insert citation,] to enforce the provisions of sections 29 through 46.

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Section 44. [Unlawful Disclosure of Financial Record Â&#x2014; Criminal Penalties.] (1) A director, executive officer, controlling person, or employee of a foreign capital depository who discloses a financial record in violation of sections 29 through 46 is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than [five thousand (5,000) dollars, by imprisonment in the state prison for not more than [one (1)] year, or by both fine and imprisonment. This subsection imposes absolute liability. (2) A director, executive officer, controlling person, or employee of a foreign capital depository or an officer, employee, or agent of a state or local agency who knowingly discloses a financial record in violation of sections 29 through 46 is guilty of a felony and upon conviction shall be punished by a fine of [ten thousand (10,000)] dollars, by imprisonment in the state prison for not more than [ten (10)] years, or by both fine and imprisonment.

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Section 45. [Customer Waiver Invalid.] A waiver by a customer of a right that is not authorized to be waived by sections 29 through 46 is not valid whether granted with or without consideration.

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Section 46. [Limitation of Actions.] An action to enforce a provision of sections 29 through 46 must be commenced within [three (3)] years after the date on which the violation occurred.

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Section 47. [Asset Protection Â&#x2014; Purpose and Perspective.] (1) The [Legislature] understands that asset protection includes the ability to minimize or avoid both the potential financial impact and loss of privacy resulting from lawsuits. The [Legislature] also recognizes that asset protection is a vital component of a foreign capital depository, as defined in section 3, that is designed to serve the interests of high net worth individuals who are not U.S. citizens and do not reside in the United States. (2) The [Legislature] further acknowledges that foreign judgments rendered in a foreign state are, unlike judgments rendered in other states of the union under the United States Constitution, not entitled by state courts to conclusive full faith and credit under common law and that the principle of comity that encourages one country to extend legal recognition to the

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judicial acts of another country does not apply to the relations between this state and a foreign country. (3) [Insert citation,] signifies a departure from comity because it codifies the principles of comity but with certain exceptions and modifications. Sections 47 through 55 of this Act enact a further departure from comity that is intended to uphold the state s interest in extending to a customer of a foreign capital depository the maximum amount of privacy possible within prudential limits as well as state and federal law. (4) Sections 47 through 55 are not intended to circumscribe or conflict with the provisions of [insert citation,] except in a case in which a foreign judgment has been obtained against the customer of a foreign capital depository.

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Section 48. [Definitions.] Unless the context requires otherwise, in sections 47 through 55, the following definitions apply: (1) Comity means the recognition of judicial acts that one country extends to another as a matter of custom, convenience, and expediency. (2) Foreign judgment has the same meaning as defined in [insert citation.] (3) Foreign state has the same meaning as defined in [insert citation.]

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Section 49. [Defense Against Enforcement of Foreign Judgments Depository Obligations.] A foreign capital depository shall, unless relieved of the responsibility by a waiver signed by a depository customer, provide a customer with competent legal counsel and defense against: (1) the recognition in this state of a foreign judgment rendered in a foreign state as provided in [insert citation;] and (2) the execution of a foreign judgment in this state pursuant to [insert citation,] but only to the extent that the execution would affect the customer s assets in the depository.

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Section 50. [Filing Fee.] A person seeking recognition of a foreign judgment rendered in a foreign state against a customer of the foreign capital depository shall pay a filing fee of [two-thousand five hundred (2,500)] dollars to the clerk of the court in which the judgment is filed.

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Section 51. [Policy Statement.] For the purposes of sections 47 through 55, the [Legislature] declares that the recognition of a foreign judgment pursuant to [insert citation,] and the execution of a foreign judgment against a customer of a foreign capital depository is repugnant to the public policy of the state if either would: (1) facilitate the arbitrary or unlawful interference with an individual s privacy in contravention of international law; (2) undermine the individual right of privacy and the right to private Suggested State Legislation - 97

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property provided for in the state constitution and state law; (3) stimulate or engender lawsuits motivated by greed or pecuniary speculation and lacking a good faith argument or other legally sound purpose; or (4) facilitate civil prosecution arising from class or ethnic hatred and nurtured by a corrupt legal system; and (5) threaten the financial stability of the depository or the state by discouraging foreign depositors and investors from becoming customers or by encouraging customers to withdraw their capital from the depository.

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Section 52. [Burden of Proof Financial Liabilities.] (1) A person seeking recognition of a foreign judgment pursuant to [insert citation] bears the burden of proving that: (a) the judgment was rendered under a system that provides impartial tribunals or procedures that are compatible with the requirements of due process of law; (b) the foreign court had personal jurisdiction over the customer when the judgment was rendered; and (c) the foreign court had jurisdiction over the subject matter. (2) The customer or the foreign capital depository acting on behalf of a customer bears the burden of proving that any one of the grounds for nonrecognition provided for in [insert citation] exist. (3) If the court finds that the person seeking recognition of the foreign judgment has failed to prove the judgment valid in accordance with subsection (1) or if the customer or the depository succeeds pursuant to subsection (2), the court may not recognize the foreign judgment. (4) If the person seeking recognition of a judgment under [insert citation] is unsuccessful in obtaining recognition of the judgment, that person shall pay the court costs and attorney fees for the parties opposing recognition or, if the customer has waived the depository s obligation provided for in section 49, for the customer.

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Section 53. [Damages In-Camera Hearing.] (1) The court in which recognition of a foreign judgment is sought may award damages against the person seeking recognition of a foreign judgment to compensate a customer for the customer s loss of privacy. (2) The amount of the damages awarded pursuant to subsection (1) must bear a reasonable relationship to the person s ability to pay and may not exceed [one million (1,000,000)] dollars. (3) Any part of a hearing necessary to determine the rights and obligations of the parties pursuant to sections 47 through 55 and part 6 may be held in camera to protect the privacy of any of the parties.

Section 54. [Contingency Fee Arrangements Prohibited.]

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A person seeking recognition of a foreign judgment against a customer of a foreign capital depository may not engage legal counsel on a contingency fee basis for the purpose of attaining recognition of the same foreign judgment.

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Section 55. [Nonrecognition Procedures to Protect Privacy.] (1) The court shall, at the request of a customer or a foreign capital depository, provide for an in-camera review of the pertinent documents to protect the confidential nature of financial records. (2) The court may permit public disclosure of a financial record or proceedings closed pursuant to subsection (1) only if it finds that disclosure is necessary for the fair resolution of an issue before it. (3) Documents produced in court containing a financial record must be sealed by the court at the conclusion of the proceedings to prevent access to the record and may be opened only for good cause shown.

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Section 56. [State Revenue from Depository Purpose and Preference.] (1) The Legislature recognizes that revenue gains to the state and the possibility of subsequent tax reduction for state taxpayers are among the most significant reasons for establishing a statutory framework for the foreign capital depository, as defined in section 3, and that a relatively steady, predictable flow of revenue is preferable to a volatile one. The Legislature also acknowledges that the depository is subject to competitive pressures in the international financial services market. It is therefore in the state s interest to balance revenue expectations with incentives that will enhance the commercial attractiveness and viability of a depository. (2) The Legislature recognizes the hazards of fortune that may be suffered by customers of a depository who are citizens or residents of countries with unstable or repressive governments and recognizes that capital in a depository may be abandoned as a consequence of a customer s disappearance or untimely death. It is in the state s interest to provide a decent interval of time before determining that capital is abandoned and, in keeping with subsection (1), to allow a depository to charge a reasonable fee for the maintenance of the abandoned capital prior to its escheatment to the state.

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Section 57. [Tax Status Exemption Guarantees.] (1) A foreign capital depository is exempt from the corporation license tax as provided in [insert citation,] until [October 1, 2012.] (2) A transaction between the depository and a customer that involves tangible personal property, as defined in section 3, is exempt from all forms of tax.

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Section 58. [State Revenue Assessment Collection Distribution.] (1) A foreign capital depository shall pay to the [department] on [June Suggested State Legislation - 99

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15 and December 15] of each year a fee that is equal to [three-quarters of one (0.75)] percent of the total value of assets on deposit or in a safe deposit box. The total annual rate of assessment is [one-and-a-half (1.5)] percent. (2) The basis of the value ascribed to each asset is: (a) the U.S. dollar exchange value of the currency on deposit on the date of assessment; (b) the spot market price of the [platinum,] [palladium,] [gold,] or [silver] held in [precious metals] accounts, as defined in section 26, as published in The Wall Street Journal on the date of assessment; or (c) the market value of other tangible personal property held in safe deposit boxes or other accounts at the time of the assessment, as determined by the depository using a method approved by the [department.] The depository shall submit to the [department] within [sixty (60)] days of the appraisal a report that documents the method and calculations of the appraisal. (3) The semiannual assessment fee must be deposited into the [general fund.]

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Section 59. [Revenue Audits Charges.] (1) The [department] shall conduct an annual audit of a foreign capital depository to verify that internal financial records of the depository comply with state law and regulations pertaining to the depository and that fees owed to the state have been properly calculated and paid on time. (2) A depository shall pay to the [department] the cost of an annual audit provided for in subsection (1). (3) The [department] may charge the depository up to [four hundred (400)] dollars a day for each auditor involved in the conduct of an audit.

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Section 60. [Deficiency Assessment Notice Penalty and Interest.] (1) If the [department] determines through an audit of a foreign capital depository that the amount collected pursuant to section 59 is less than the amount owed by the depository, the [department] shall send by certified mail to the depository a notice of the deficiency and require payment of the amount owed plus a [ten (10)] percent penalty within [sixty (60)] days of the depository s receipt of the notice. (2) The depository must bear the interest charge on any deficiency assessment issued by the [department] in accordance with subsection (1). The rate of interest charged to the depository may not exceed [twelve (12)] percent a year.

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Section 61. [Right of Appeal.] A foreign capital depository that receives a notice of deficiency assessment may appeal the amount of the fee, penalty, or interest charged in accordance with [insert citation.]

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Section 62. [Limitation on Penalty and Interest.] An amount of penalty or interest owed by the depository pursuant to section 60 may not be assessed or collected with respect to the year for which a semiannual fee is assessed unless the notice of the additional amount owed is mailed within [five (5)] years from the date the fee was paid.

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Section 63. [Action by Attorney General.] An action may be brought by the [attorney general] in the name of the state at the request of the [department] to recover the amount of any fees, penalties, and interest due under sections 58 through 61.

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Section 64. [Abandoned Capital Â&#x2014; Disposition Â&#x2014; Escheatment.] (1) A foreign capital depository, as defined in section 3, shall presume that capital on deposit in a depository account is abandoned in accordance with the provisions of [insert citation.] (2) A depository shall dispose of the abandoned capital in the manner provided for in this chapter, except that: (a) a notice of the property presumed abandoned may not be published as prescribed in [insert citation;] (b) the record of deposit required under [insert citation] may not be made available for public inspection; and (c) all money received by the [Department of Revenue] as a consequence of the abandonment of capital in a depository must be deposited in the [general fund.] (3) A foreign capital depository may deduct from property that is presumed to be abandoned a charge imposed by reason of the ownerÂ&#x2019;s failure to claim the property within a specified time only if there is a valid and enforceable written contract between the depository and the owner under which the depository may impose the charge and if the depository regularly imposes the charge, which is not regularly reversed or otherwise canceled. The amount of the deduction is limited to an amount that is not unconscionable.

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Section 65. [Injunctions.] The [department] may institute and maintain in the name of the state actions for injunctive relief as provided in [insert citation,] to: (1) enjoin a violation of sections 1 through 46, a rule adopted pursuant to sections 1 through 46, the terms or conditions of a charter, or an order of the [department] or the [board;] or (2) require compliance with sections 1 through 46, a rule adopted pursuant to sections 1 through 46, the terms or conditions of a charter, or an order of the [department] or the [board.]

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Section 66. [Civil Penalties.] (1) Except for the penalties for wrongful disclosure provided for in section 43, a person who violates a provision of sections 1 through 46, a rule adopted under sections 1 through 46, the terms and conditions of a charter or an order of the [department] or the [board] is subject to a civil penalty not to exceed [ten thousand (10,000)] for each day of violation. Each day of violation of sections 1 through 46, a rule adopted under sections 1 through 46, the terms or conditions of a charter, or an order constitutes a separate violation. (2) The [department] may institute and maintain in the name of the state any enforcement proceedings under this section. Upon request of the [department], the [attorney general] or the [county attorney] of the county where the violation occurred shall petition the [district court] to impose, assess, and recover the civil penalty. (3) Action under this section does not bar: (a) enforcement of sections 1 through 46, rules adopted under sections 1 through 46, orders of the [department] or the [board,] or terms or conditions of a charter by injunction or other appropriate remedy; or (b) action under section 67.

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Section 67. [Criminal Penalties.] (1) Except for the penalties for wrongful disclosure provided for in section 44, a person who knowingly operates a foreign capital depository without a charter, in violation of the terms or conditions of a charter, or in violation of sections 1 through 46, a rule adopted pursuant to sections 1 through 46, or an order of the [department] or [board] or a person who knowingly makes any false statements or representations in an application, report, or other document filed or maintained as required by sections 1 through 46 or required by rules adopted under sections 1 through 46 is subject to a fine not to exceed [ten thousand (10,000)] for each violation or imprisonment not to exceed [six (6)] months, or both. Each day of violation constitutes a separate violation. (2) A person convicted of a second or subsequent criminal violation is subject to a fine not to exceed [twenty thousand (20,000)] dollars for each violation or imprisonment not to exceed [one (1)] year, or both. Each day of a violation constitutes a separate violation. (3) Action under this section does not bar enforcement of sections 1 through 46, rules adopted under sections 1 through 46, orders of the [department] or the [board,] or terms or conditions of a charter by injunction or other appropriate remedy. Miscellaneous Modifications to State Banking Laws

Section 68. [Disposition of Money from Certain Designated License and

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Other Taxes.] The [state treasurer] shall deposit to the credit of the state [general fund] in accordance with the provisions of [insert citation] all money received from the collection of fees based on the value of currency on deposit and tangible personal property held for safekeeping by a foreign capital depository as provided in section 58 of this Act.

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Section 69. [Organizations Subject to Tax.] A foreign capital depository chartered under the laws of this state is not subject to the state corporation license tax provided for under [insert citation] until [October 1, 2012.] For taxable years beginning on and after [January 1, 1972,] this subsection is effective in accordance with Public Law 91156, section 2 (12 U.S.C. 548).

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Section 70. [Organizations Exempt from Tax Â&#x2014; Unrelated Business Income Not Exempt.] (1) Except as provided in [insert citation,] there may not be taxed under [insert citation] any income received by any foreign capital depository chartered under the provisions of sections 4, 8, and 9 of this Act.

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Section 71. [Fees.] A person filing a foreign judgment against a customer of a foreign capital depository, as defined in this Act shall pay to the clerk of court a fee of [two thousand five hundred (2,500)] dollars.

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Section 72. [Uniformity of Interpretation.] Except for the provisions in sections 47 through 55 of this Act pertaining to a customer of a foreign capital depository, as defined in this Act, this part must be construed to effectuate the general purpose to make uniform the law of those states that enact it.

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Section 73. [Organization and Incorporation Â&#x2014; Articles of Incorporation.] (1) A person desiring to organize a banking corporation or a foreign capital depository shall make and file articles of incorporation with the [department] and, upon approval by the [department,] may file the articles with the [secretary of state] as provided in [insert citation.] The articles of incorporation must set forth: (a) the information required by [insert citation;] (b) the name of the city or town and county in which the principal office of the corporation or foreign capital depository is to be located; (c) the names and places of residence of the initial shareholders and the number of shares subscribed by each; (d) the number of the board of directors and the names of those agreed upon for the [first (1)] year; and Suggested State Legislation - 103

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(e) the purpose for which the banking corporation or foreign capital depository is formed, which may be set forth by the use of the general terms defined in this Act, with reference to each line of business in which the proposed corporation or foreign capital depository desires to engage. (2) In addition to provisions required in subsection (1), the articles of incorporation may also contain provisions set forth in [insert citation.] (3) A banking corporation or foreign capital depository may not adopt or use the name of any other banking corporation or association or foreign capital depository, and the corporation name must comply with [insert citation.] (4) A banking corporation or a foreign capital depository may not be organized or incorporated until the articles of incorporation have been submitted to and have been approved by the [department] and until it has obtained a certificate from the board authorizing the proposed corporation or foreign capital depository to transact the business specified in the articles of incorporation within this state. (5) A banking corporation or a foreign capital depository may not amend or restate its articles of incorporation until its articles of amendment or articles of restatement have been submitted to and have been approved by the department and until it has obtained approval from the department authorizing the proposed amendment or restatement. (6) For banks organized before [October 1, 1993,] articles of agreement are considered articles of incorporation.

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Section 74. [Safe Deposit Department.] A bank or a foreign capital depository may conduct a safe deposit department. The liability of any bank or foreign capital depository for the safekeeping and protection of the contents of safety deposit boxes is determined by the contract endorsed on the receipt delivered to the renter of a box at the time of the rental. However, the obligation of the bank or foreign capital depository is limited to the exercise of ordinary diligence and care to protect the contents of the box from loss or damage by fire, theft, or other causes.

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Section 75. [Bonding of Employees.] (1) The board of directors of a bank or foreign capital depository shall require bonding for all officers and employees of the bank or foreign capital depository whose duty includes the handling of money, notes, bonds, credits, and cash items and whose duties include bookkeeping or the making of entries in relation to the business of the bank and its customers. (2) The board of directors shall by order entered upon the minute books of the board designate the officers and employees to be bonded and the amount of bonds to be given. Action as to the personnel, the amount of bonds, and the surety company or sureties is subject to approval by the

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[department,] and the bonds must be in such a form as is provided or approved by the [department.] (3) The bonds must be approved by the president of the bank or the chief executive officer of the foreign capital depository, and the presidentÂ&#x2019;s or executive officerÂ&#x2019;s action must be reported to the board of directors. (4) All bonds required by this section must be kept in the custody of the bank or foreign capital depository subject to inspection by examiners from the [department.] However, as far as possible, they may not be placed in the custody of the officer or employee for whom the bond is given.

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Section 76. [Persons Previously Convicted Under Banking Laws Â&#x2014; Bank or Depository Employment.] It is unlawful for a person who has been convicted of a violation of the banking laws of any state or nation to accept employment in a bank or a foreign capital depository in this state without first stating the relevant facts to the directors of the bank or foreign capital depository. A person who has been convicted of a banking law violation may not be employed in a bank or a foreign capital depository without the approval of the [department,] granted in writing after a full consideration of the facts.

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Section 77. [Destruction of Bank Records.] (1) Banks and foreign capital depositories are required to preserve or keep their records of customer accounts for at least [eight (8)] years next after [January 1] of the year following the time of that the making of such records; provided, however, that are made. However, records showing unpaid balances in favor of depositors of a bank or foreign capital depository may not be destroyed. Liability may not accrue against any a bank or depository destroying any such records (except records of which destruction is forbidden by this section) after the expiration of the time provided in this section. (2) The department shall adopt rules providing for retention schedules for bank records other than those records listed in subsection (1).

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Section 78. [Dissolution and Disincorporation.] Commercial banks, savings banks, trust companies, investment companies, and foreign capital depositories may be dissolved in the manner provided by the laws of this state applicable to the dissolution of other corporations. However, a bank, trust company, or foreign capital depository may, upon a vote of [two-thirds (2/3)] of its stockholders at a special meeting called for that purpose in accordance with its bylaws, voluntarily quit business and liquidate upon the payment of its debts, exclusive of liability to stockholders, or upon agreement with all of its creditors to a plan of liquidation. A bank, trust company, or foreign capital depository that wishes to voluntarily liquidate shall apply to the department for permission to liquiSuggested State Legislation - 105

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date and, in addition to complying with the laws of this state governing the liquidation of corporations, shall comply in all respects with the requirements or rules of the [department] governing voluntary dissolution. The board of directors of a bank, trust company, or foreign capital depository whose stockholders have voted to place it in voluntary liquidation shall appoint a liquidating agent to wind up the affairs of the bank, trust company, or foreign capital depository. The liquidating agent, on authority of the board of directors, may execute deeds for the transfer of real property and do all things necessary to carry out the proper liquidation of the bank, trust company, or foreign capital depository. Nothing in this section prevents the department from taking charge at any time when in its opinion the interest of creditors or stockholders is not being protected. The decision of the [department] in these matters is controlling.

Section 79. [Severability.] [Insert severability clause.]

Section 80. [Repealer.] [Insert repealer clause.]

Section 81. [Effective Date.] [Insert effective date.]

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Genetic Information Privacy This Act declares genetic testing and information derived from genetic testing as confidential and privileged information. It says that such information may be released only to people who are tested or to people who are specifically authorized in writing by law to receive the information. The Act prohibits insurers from seeking information that is derived from genetic testing for use in conjunction with health or accident insurance policies. However, companies can use information from genetic testing if the people who have been tested voluntarily provide the companies with such information. The law also sets guidelines for disclosing genetic test results and for rights of action by people whose results are inappropriately disclosed. Submitted as: Illinois PA 90-25 (HB 8) Enacted into law, 1997.

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Section 1. [Short Title.] This Act may be cited as the Genetic Information Privacy Act.

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Section 2. [Legislative Findings; Intent.] The [General Assembly] finds that: (1) The use of genetic testing can be valuable to an individual. (2) Despite existing laws, regulations, and professional standards which require or promote voluntary and confidential use of genetic testing information, many members of the public are deterred from seeking genetic testing because of fear that test results will be disclosed without consent or be used in a discriminatory manner. (3) The public health will be served by facilitating voluntary and confidential nondiscriminatory use of genetic testing information.

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Section 3. [Definitions.] As used in this Act: Genetic testing means a test of a person s genes, gene products, or chromosomes for abnormalities or deficiencies, including carrier status, that (i) are linked to physical or mental disorders or impairments, (ii) indicate a susceptibility to illness, disease, impairment, or other disorders, whether physical or mental, or (iii) demonstrate genetic or chromosomal damage Suggested State Legislation - 107

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due to environmental factors. Genetic testing does not include routine physical measurements; chemical, blood and urine analyses that are widely accepted and in use in clinical practice; tests for use of drugs; and tests for the presence of the human immunodeficiency virus. Insurer means (i) an entity that transacts an insurance business and (ii) a managed care plan. Managed care plan means a plan that establishes, operates, or maintains a network of health care providers that have entered into agreements with the plan to provide health care services to enrollees where the plan has the ultimate and direct contractual obligation to the enrollee to arrange for the provision of or pay for services through: (1) organizational arrangements for ongoing quality assurance, utilization review programs, or dispute resolution; or (2) financial incentives for people enrolled in the plan to use the participating providers and procedures covered by the plan. A managed care plan may be established or operated by any entity including a licensed insurance company, hospital or medical service plan, health maintenance organization, limited health service organization, preferred provider organization, third party administrator, or an employer or employee organization.

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Section 4. [Confidentiality of Genetic Information.] (a) Except as otherwise provided in this Act, genetic testing and information derived from genetic testing is confidential and privileged and may be released only to the individual tested and to people specifically authorized, in writing in accordance with Section 8, by that individual to receive the information. Except as otherwise provided in subsection (b) and in Section 8, this information shall not be admissible as evidence, nor discoverable in any action of any kind in any court, or before any tribunal, board, agency or person pursuant to [insert citation.] No liability shall attach to any hospital, physician, or other health care provider for compliance with the provisions of this Act including a specific written release by the individual in accordance with this Act. (b) When a biological sample is legally obtained by a peace officer for use in a criminal investigation or prosecution, information derived from genetic testing of that sample may be disclosed for identification purposes to appropriate law enforcement authorities conducting the investigation or prosecution and may be used in accordance with [insert citation.] The information may be used for identification purposes during the course of the investigation or prosecution with respect to the individual tested without the consent of the individual and shall be admissible as evidence in court. The information shall be confidential and may be disclosed only for purposes of criminal investigation or prosecution. (c) If the subject of the information requested by law enforcement is

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found innocent of the offense or otherwise not criminally penalized, then the court records shall be expunged by the court within [thirty (30)] days after the final legal proceeding. The court shall notify the subject of the information of the expungement of the records in writing. (d) Results of genetic testing that indicate that the individual tested is at the time of the test afflicted with a disease, whether or not currently symptomatic, are not subject to the confidentiality requirements of this Act.

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Section 5. [Use of Genetic Testing Information for Insurance Purposes.] (a) An insurer may not seek information derived from genetic testing for use in connection with a policy of accident and health insurance. Except as provided in subsection (b), an insurer that receives information derived from genetic testing may not use the information for a nontherapeutic purpose as it relates to a policy of accident and health insurance. (b) An insurer may consider the results of genetic testing in connection with a policy of accident and health insurance if the individual voluntarily submits the results and the results are favorable to the individual. (c) An insurer that possesses information derived from genetic testing may not release the information to a third party, except as specified in Section 8.

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Section 6. [Tests to Determine Inherited Characteristics in Paternity Proceedings.] Nothing in this Act shall be construed to affect or restrict in any way the ordering of or use of results from deoxyribonucleic acid (DNA) testing or other tests to determine inherited characteristics by a court in a judicial proceeding under [insert citation.]

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Section 7. [Use of Genetic Testing Information by Employers.] (a) An employer shall treat genetic testing information in such a manner that is consistent with the requirements of federal law, including but not limited to the Americans with Disabilities Act. (b) An employer may release genetic testing information only in accordance with Section 8.

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Section 8. [Disclosure of Person Tested and Test Results.] (a) No person may disclose or be compelled to disclose the identity of any person upon whom a genetic test is performed or the results of a genetic test in a manner that permits identification of the subject of the test, except to the following people: (1) The subject of the test or the subjectÂ&#x2019;s legally authorized representative. This paragraph does not create a duty or obligation under which a health care provider must notify the subjectÂ&#x2019;s spouse or legal guardian of the test results, and no such duty or obligation shall be implied. No civil Suggested State Legislation - 109

Genetic Information Privacy 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53

liability or criminal sanction under this Act shall be imposed for any disclosure or nondisclosure of a test result to a spouse by a physician acting in good faith under this paragraph. For the purpose of any proceedings, civil or criminal, the good faith of any physician acting under this paragraph shall be presumed. (2) Any person designated in a specific written legally effective release of the test results executed by the subject of the test or the subject s legally authorized representative. (3) An authorized agent or employee of a health facility or health care provider if the health facility or health care provider itself is authorized to obtain the test results, the agent or employee provides patient care, and the agent or employee has a need to know the information in order to conduct the tests or provide care or treatment. (4) A health facility or health care provider that procures, processes, distributes, or uses: (A) a human body part from a deceased person with respect to medical information regarding that person; or (B) semen provided prior to the effective date of this Act for the purpose of artificial insemination. (5) Health facility staff committees for the purposes of conducting program monitoring, program evaluation, or service reviews. (6) In the case of a minor under [eighteen (18)] years old, the health care provider who ordered the test shall make a reasonable effort to notify the minor s parent or legal guardian if, in the professional judgment of the health care provider, notification would be in the best interest of the minor and the health care provider has first sought unsuccessfully to persuade the minor to notify the parent or legal guardian or after a reasonable time after the minor has agreed to notify the parent or legal guardian, the health care provider has reason to believe that the minor has not made the notification. This paragraph shall not create a duty or obligation under which a health care provider must notify the minor s parent or legal guardian of the test results, nor shall a duty or obligation be implied. No civil liability or criminal sanction under this Act shall be imposed for any notification or non-notification of a minor s test result by a health care provider acting in good faith under this paragraph. For the purpose of any proceeding, civil or criminal, the good faith of any health care provider acting under this paragraph shall be presumed. (7) All information and records held by a state agency or local health authority pertaining to genetic information shall be strictly confidential and exempt from copying and inspection under the Freedom of Information Act. The information and records shall not be released or made public by the state agency or local health authority and shall not be admissible as evidence nor discoverable in any action of any kind in any court or before any tribunal, board, agency, or person and shall be treated in the same

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manner as the information and those records subject to [insert citation,] except under the following circumstances: (A) when made with the written consent of all people to whom the information pertains; (B) when authorized by [insert citation;] (C) when made for the sole purpose of implementing the [Phenylketonuria Testing Act] and rules: or (D) when made under the authorization of the [insert citation;] Disclosure shall be limited to those who have a need to know the information, and no additional disclosures may be made.

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Section 9. [Disclosure by Person to Whom Results have been Disclosed.] No person to whom the results of a test have been disclosed may disclose the test results to another person except as authorized by Section 8.

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Section 10. [Right of Action.] (a) Any person aggrieved by a violation of this Act shall have a right of action in the [circuit court] and may recover for each violation: (1) Against any person who negligently violates a provision of this Act, liquidated damages of [one thousand (1,000)] dollars or actual damages, whichever is greater. (2) Against any person who intentionally or recklessly violates a provision of this Act, liquidated damages of [five thousand (5,000)] dollars or actual damages, whichever is greater. (3) Reasonable attorney fees. (4) Such other relief, including an injunction, as a court may deem appropriate. (b) [Insert citation] shall provide the exclusive remedy for violations of Section 8 by insurers.

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Section 11. [Damages or Other Relief.] Nothing in this Act limits the right of the subject of a test to recover damages or other relief under any other applicable law.

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Section 12. [Use of Information Derived from Genetic Testing.] Beginning [date,] an insurer must comply with the provisions of this Act in connection with the amendment, delivery, issuance, or renewal of, or claims for or denial of coverage under, an individual or group policy of accident and health insurance.

Section 13. [Severability.] [Insert severability clause.]

Section 14. [Repealer.] [Insert repealer clause.]

Section 15. [Effective Date.] [Insert effective date.] Suggested State Legislation - 111

Grandparents as Foster Parents This Act creates the Grandparents as Foster Parents Program within the state Department of Social Services. Grandparents who are 55 years of age or older who are the legal guardians of a grandchild placed in their care, who meet needs criteria established by the Division of Family Services and in accordance with state appropriations, and who participate in parenting skills training are eligible for state-funded assistance under the welfare-reform appropriations. Such assistance will provide reimbursement based on the current foster care payment schedule, support services including child care and transportation assistance, and Medicaid coverage for the grandchild. The program will also offer foster parent training, health screenings including childhood immunizations, and continuing counseling for the child and grandparent. Submitted as: Missouri HB 509 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as an An Act to Establish a Grandparents as Foster Parents Program.

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Section 2. [Program Established.] (a) The [Division of Family Services] in the [Department of Social Services] shall establish the [ Grandparents as Foster Parents Program. ] (b) A grandparent shall be eligible to participate in the [Grandparents as Foster Parents Program] if such grandparent: (1) Is [fifty-five (55)] years of age or older; (2) Is the legal guardian of a grandchild placed in such grandparent s custody; and (3) Participates in the training available through the [division] pursuant to subsection (c) of this section. (c) The [Grandparents as Foster Parents Program] shall: (1) Provide reimbursement based on the current foster care payment schedule to eligible grandparents, as defined in subsection (b) of this section, for the care of a grandchild; (2) Establish program components, including, but not limited to, participation in foster parent training, parenting skills training, childhood

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immunizations and other similar health screenings; (3) Provide continuing counseling for the child and grandparent; (4) Provide support services, including, but not limited to, respite care, child care and transportation assistance; and (5) Provide Medicaid services to such child. (6) Meets a needs criteria established by the [Division of Family Services] and in accordance with appropriations granted by the [General Assembly.]

Section 3. [Severability.] [Insert severability clause.]

Section 4. [Repealer.] [Insert repealer clause.]

Section 5. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 113

Gross Sexual Imposition With A Controlled Substance This Act increases criminal penalties for gross sexual imposition and rape when the offender administers a controlled substance to the victim surreptitiously or by force, threat of force, or deception. Such offenses are commonly referred to as date rape. The Act makes sexual battery a thirddegree felony in all circumstances and clarifies that courts must impose a mandatory prison term upon an offender who has been convicted of or pleaded guilty to rape. Submitted as: Ohio HB 32 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as an Act to Increase Penalties for Gross Sexual Imposition.

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Section 2. [Definitions.] (A) Sexual conduct means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. (B) Sexual contact means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person. (C) Sexual activity means sexual conduct or sexual contact, or both. (D) Prostitute means a male or female who promiscuously engages in sexual activity for hire, regardless of whether the hire is paid to the prostitute or to another. (E) Any material or performance is harmful to juveniles, if it is offensive to prevailing standards in the adult community with respect to what is suitable for juveniles, and if any of the following apply: (1) It tends to appeal to the prurient interest of juveniles;

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(2) It contains a display, description, or representation of sexual activity, masturbation, sexual excitement, or nudity; (3) It contains a display, description, or representation of bestiality or extreme or bizarre violence, cruelty, or brutality; (4) It contains a display, description, or representation of human bodily functions of elimination; (5) It makes repeated use of foul language; (6) It contains a display, description, or representation in lurid detail of the violent physical torture, dismemberment, destruction, or death of a human being; (7) It contains a display, description, or representation of criminal activity that tends to glorify or glamorize the activity, and that, with respect to juveniles, has a dominant tendency to corrupt. (F) When considered as a whole, and judged with reference to ordinary adults or, if it is designed for sexual deviates or other specially susceptible group, judged with reference to that group, any material or performance is obscene if any of the following apply: (1) Its dominant appeal is to prurient interest; (2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, masturbation, sexual excitement, or nudity in a way that tends to represent human beings as mere objects of sexual appetite; (3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality; (4) Its dominant tendency is to appeal to scatological interest by displaying or depicting human bodily functions of elimination in a way that inspires disgust or revulsion in persons with ordinary sensibilities, without serving any genuine scientific, educational, sociological, moral, or artistic purpose; (5) It contains a series of displays or descriptions of sexual activity, masturbation, sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such an interest is primarily for its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose. (G) Sexual excitement means the condition of human male or female genitals when in a state of sexual stimulation or arousal. (H) Nudity means the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering of any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state. (I) Juvenile means an unmarried person under the age of eighteen. (J) Material means any book, magazine, newspaper, pamphlet, poster, Suggested State Legislation - 115

Gross Sexual Imposition With A Controlled Substance 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78

print, picture, figure, image, description, motion picture film, phonographic record, or tape, or other tangible thing capable of arousing interest through sight, sound, or touch. (K) Performance means any motion picture, preview, trailer, play, show, skit, dance, or other exhibition performed before an audience. (L) Spouse means a person married to an offender at the time of an alleged offense, except that such person shall not be considered the spouse when any of the following apply: (1) When the parties have entered into a written separation agreement authorized by [insert citation;] (2) During the pendency of an action between the parties for annulment, divorce, dissolution of marriage, or legal separation; (3) In the case of an action for legal separation, after the effective date of the judgment for legal separation. (M) Minor means a person under the age of [eighteen (18).]

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Section 3. [Sexual Conduct - Prohibitions and Consent.] (A) (1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies: (a) For the purpose of preventing resistance, the offender substantially impairs the other person s judgment or control by administering any drug or intoxicant, or controlled substance to the other person surreptitiously, or by force, threat of force, or deception. (b) The other person is less than [thirteen (13)] years of age, whether or not the offender knows the age of the other person. (c) The other person s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age. (2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. (B) Whoever violates this section is guilty of rape, a felony of the [first] degree. If the offender under division (A)(1)(a) of this section substantially impairs the other person s judgment or control by administering any controlled substance described in [insert citation] to the other person surreptitiously or by force, threat of force, or deception, the prison term imposed upon the offender shall be [one (1)] of the prison terms prescribed for a felony of the [first] degree in [insert citation] that is not less than [five (5)] years. If the offender under division (A)(1)(b) of this section purposely compels the victim to submit by force or threat of force, whoever violates divi-

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sion (A)(1)(b) of this section shall be imprisoned for [life.] (C) A victim need not prove physical resistance to the offender in prosecutions under this section. (D) Evidence of specific instances of the victim s sexual activity, opinion evidence of the victim s sexual activity, and reputation evidence of the victim s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Evidence of specific instances of the defendant s sexual activity, opinion evidence of the defendant s sexual activity, and reputation evidence of the defendant s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant s past sexual activity with the victim, or is admissible against the defendant under [insert citation,] and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. (E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than [three (3)] days before trial, or for good cause shown during the trial. (F) Upon approval by the court, the victim may be represented by counsel in any hearing in chambers or other proceeding to resolve the admissibility of evidence. If the victim is indigent or otherwise is unable to obtain the services of counsel, the court, upon request, may appoint counsel to represent the victim without cost to the victim. (G) It is not a defense to a charge under division (A)(2) of this section that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

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Section 4. [Sexual Conduct - Prohibitions and Relationship of Offenders to Their Victims.] (A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply: (1) The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution. (2) The offender knows that the other person s ability to appraise the nature of or control the other person s own conduct is substantially impaired. (3) The offender knows that the other person submits because the Suggested State Legislation - 117

Gross Sexual Imposition With A Controlled Substance 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

other person is unaware that the act is being committed. (4) The offender knows that the other person submits because the other person mistakenly identifies the offender as the other person s spouse. (5) The offender is the other person s natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person. (6) The other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person. (7) The offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the [state board of education] prescribes minimum standards pursuant to [insert citation,] the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school. (8) The other person is a minor, the offender is a teacher, administrator, coach, or other person in authority employed by or serving in an institution of higher education, and the other person is enrolled in or attends that institution. (9) The other person is a minor, and the offender is the other person s athletic or other type of coach, is the other person s instructor, is the leader of a scouting troop of which the other person is a member, or is a person with temporary or occasional disciplinary control over the other person. (B) Whoever violates this section is guilty of [sexual battery.] A violation of division (A)(1), (5), (6), (7), (8), or (9) of this section is, a [felony of the third degree.] A violation of division (A)(2), (3), or (4) of this section is a [felony of the fourth degree.] (C) As used in this section, institution of higher education means a state institution of higher education defined in [insert citation,] a private nonprofit college or university located in this state that possesses a certificate of authorization issued by the [state board of regents] pursuant to [insert citation,] or a school certified under [insert citation.]

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Section 5. [Sexual Contact General Prohibitions.] (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause [two (2)] or more other persons to have sexual contact when any of the following applies: (1) The offender purposely compels the other person, or [one (1)] of the other persons, to submit by force or threat of force. (2) For the purpose of preventing resistance, the offender substantially impairs the judgment or control of the other person or of [one (1)] of the other persons by administering any drug or intoxicant, or controlled substance to the other person, surreptitiously or by force, threat of force, or deception.

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(3) The offender knows that the judgment or control of the other person or of [one (1)] of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person s consent for the purpose of any kind of medical or dental examination, treatment, or surgery. (4) The other person, or [one (1)] of the other persons, is less than [thirteen (13)] years of age, whether or not the offender knows the age of that person. (5) The ability of the other person to resist or consent or the ability of [one (1)] of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of [one (1)] of the other persons is substantially impaired because of a mental or physical condition or because of advanced age. (B) Whoever violates this section is guilty of gross sexual imposition. Except as otherwise provided in this section, a violation of division (a)(1), (2), (3), or (5) of this section is a [felony of the fourth degree.] If the offender under division (a)(2) of this section substantially impairs the judgment or control of the other person or [one (1)] of the other persons by administering any controlled substance described in [insert citation] to the person surreptitiously or by force, threat of force, or deception, a violation of division (a)(2) of this section is a [felony of the third degree.] A violation of division (a)(4) of this section is a [felony of the third degree.] (C) A victim need not prove physical resistance to the offender in prosecutions under this section. (D) Evidence of specific instances of the victim s sexual activity, opinion evidence of the victim s sexual activity, and reputation evidence of the victim s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim s past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Evidence of specific instances of the defendant s sexual activity, opinion evidence of the defendant s sexual activity, and reputation evidence of the defendant s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant s past sexual activity with the victim, or is admissible against the defendant under [insert citation,] and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. (E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing Suggested State Legislation - 119

Gross Sexual Imposition With A Controlled Substance 57 58 59 60 61 62 63 64

in chambers, which shall be held at or before preliminary hearing and not less than [three (3)] days before trial, or for good cause shown during the trial. (F) Upon approval by the court, the victim may be represented by counsel in any hearing in chambers or other proceeding to resolve the admissibility of evidence. If the victim is indigent or otherwise is unable to obtain the services of counsel, the court, upon request, may appoint counsel to represent the victim without cost to the victim.

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Section 6. [Additional Penalties.] (A) Except as provided in division (E), (F), or (G) of this section and unless a specific sanction is required to be imposed or is precluded from being imposed pursuant to law, a court that imposes a sentence upon an offender for a felony may impose any sanction or combination of sanctions on the offender that are provided in section 7 of this Act and [insert citation.] The sentence shall not impose an unnecessary burden on state or local government resources. If the offender is eligible to be sentenced to community control sanctions, the court shall consider the appropriateness of imposing a financial sanction pursuant to [insert citation] or a sanction of community service pursuant to [insert citation] as the sole sanction for the offense. Except as otherwise provided in this division, if the court is required to impose a mandatory prison term for the offense for which sentence is being imposed, the court also may impose a financial sanction pursuant to [insert citation] but may not impose any additional sanction or combination of sanctions under [insert citation.] If the offender is being sentenced for a [fourth degree felony] [OMVI] offense, in addition to the mandatory term of local incarceration or the mandatory prison term required for the offense by division (G)(1) or (2) of this section, the court shall impose upon the offender a mandatory fine in accordance with [insert citation] and may impose whichever of the following is applicable: (1) If division (G)(1) of this section requires that the offender be sentenced to a mandatory term of local incarceration, an additional community control sanction or combination of community control sanctions under [insert citation;] (2) If division (G)(2) of this section requires that the offender be sentenced to a mandatory prison term, an additional prison term as described in division (D)(4) of section 7 of this Act. (B) (1) Except as provided in division (B)(2), (E), (F), or (G) of this section, in sentencing an offender for a [felony of the fourth or fifth degree,] the sentencing court shall determine whether any of the following apply: (a) In committing the offense, the offender caused physical harm to a person.

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(b) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon. (c) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convicted of an offense that caused physical harm to a person. (d) The offender held a public office or position of trust and the offense related to that office or position; the offenderÂ&#x2019;s position obliged the offender to prevent the offense or to bring those committing it to justice; or the offenderÂ&#x2019;s professional reputation or position facilitated the offense or was likely to influence the future conduct of others. (e) The offender committed the offense for hire or as part of an organized criminal activity. (f) The offense is a sex offense that is a [fourth] or [fifth] degree felony violation of sections 4 and 5 of this Act and [insert citation] of state law. (g) The offender previously served a prison term. (h) The offender previously was subject to a community control sanction, and the offender committed another offense while under the sanction. (2) (a) If the court makes a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), or (h) of this section and if the court, after considering the factors set forth in [insert citation,] finds that a prison term is consistent with the purposes and principles of sentencing set forth in [insert citation] and finds that the offender is not amenable to an available community control sanction, the court shall impose a prison term upon the offender. (b) Except as provided in division (E), (F), or (G) of this section, if the court does not make a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), or (h) of this section and if the court, after considering the factors set forth in [insert citation,] finds that a community control sanction or combination of community control sanctions is consistent with the purposes and principles of sentencing set forth in [insert citation,] the court shall impose a community control sanction or combination of community control sanctions upon the offender. (C) Except as provided in division (E) or (F) of this section, in determining whether to impose a prison term as a sanction for a [felony of the third degree] or a [felony drug offense] that is a violation of [insert citation] and that is specified as being subject to this division for purposes of sentencing, the sentencing court shall comply with the purposes and principles of sentencing under [insert citation.] (D) Except as provided in division (E) or (F) of this section, for a [felony of the first or second degree] and for a [felony drug offense] that is a violation of any provision of [insert citation] for which a presumption in favor of Suggested State Legislation - 121

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a prison term is specified as being applicable, it is presumed that a prison term is necessary in order to comply with the purposes and principles of sentencing under [insert citation.] Notwithstanding the presumption established under this division, the sentencing court may impose a community control sanction or a combination of community control sanctions instead of a prison term on an offender for a [felony of the first or second degree] or for a [felony drug offense] that is a violation of any provision of [insert citation] for which a presumption in favor of a prison term is specified as being applicable if it makes both of the following findings: (1) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future crime, because the applicable factors under [insert citation] indicating a lesser likelihood of recidivism outweigh the applicable factors under that section indicating a greater likelihood of recidivism. (2) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under [insert citation] that indicate that the offenderÂ&#x2019;s conduct was less serious than conduct normally constituting the offense are applicable, and they outweigh the applicable factors under that section that indicate that the offenderÂ&#x2019;s conduct was more serious than conduct normally constituting the offense. (E) (1) Except as provided in division (F) of this section, for any drug offense that is a violation of any provision of [insert citation] and that is a [felony of the third, fourth, or fifth degree,] the applicability of a presumption under division (D) of this section in favor of a prison term or of division (B) or (C) of this section in determining whether to impose a prison term for the offense shall be determined as specified in [insert citation,] whichever is applicable regarding the violation. (2) If an offender who was convicted of or pleaded guilty to a [felony drug offense] in violation of a provision of [insert citation] violates the conditions of a community control sanction imposed for the offense solely by possession or using a controlled substance and if the offender has not failed to meet the conditions of any drug treatment program in which the offender was ordered to participate as a sanction for the offense, the court, as punishment for the violation of the sanction, shall order that the offender participate in a drug treatment program or in alcoholics anonymous, narcotics anonymous, or a similar program if the court determines that an order of that nature is consistent with the purposes and principles of sentencing set forth in [insert citation.] If the court determines that an order of that nature would not be consistent with those purposes and principles or if the offender violated the conditions of a drug treatment program in which the offender participated as a sanction for the offense, the court may impose on the offender a sanction authorized for the violation of the sanction, including a prison term.

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(F) Notwithstanding divisions (A) to (E) of this section, the court shall impose a prison term or terms under [insert citation] and except as specifically provided in [insert citation] or when parole is authorized for the offense under [insert citation,] shall not reduce the terms pursuant to [insert citation,] or any other provision of [insert citation] for any of the following offenses: (1) Aggravated murder when death is not imposed or murder; (2) [Rape or] any rape, regardless of whether force was involved and regardless of the age of the victim, or an attempt to commit rape by force when the victim is under [thirteen (13)] years of age; (3) Gross sexual imposition or sexual battery, if the victim is under [thirteen (13)] years of age, if the offender previously was convicted of or pleaded guilty to [rape,] the former offense of [felonious sexual penetration, gross sexual imposition, or sexual battery,] and if the victim of the previous offense was under [thirteen (13)] years of age; (4) A felony violation of [insert citation] if [insert citation] requires the imposition of a prison term; (5) A [first, second, or third degree felony drug offense] for which [insert citation,] whichever is applicable regarding the violation, requires the imposition of a mandatory prison term; (6) Any offense that is a [first or second degree felony] and that is not set forth in division (F)(1), (2), (3), or (4) of this section, if the offender previously was convicted of or pleaded guilty to [aggravated murder, murder, any first or second degree felony, or an offense] under an existing or former law of this state, another state, or the United States that is or was substantially equivalent to [one (1)] of those offenses; (7) Any offense, other than a violation of [insert citation,] that is a [felony,] if the offender had a firearm on or about the offenderÂ&#x2019;s person or under the offenderÂ&#x2019;s control while committing the [felony,] with respect to a portion of the sentence imposed pursuant to division (D)(1)(a) of section 7 for having the firearm; (8) Corrupt activity in violation of [insert citation] when the most serious offense in the pattern of corrupt activity that is the basis of the offense is a [felony of the first degree;] (9) Any [sexually violent offense] for which the offender also is convicted of or pleads guilty to a [sexually violent predator specification] that was included in the indictment, count in the indictment, or information charging the [sexually violent offense.] (G) Notwithstanding divisions (A) to (E) of this section, if an offender is being sentenced for a [fourth degree felony] [OMVI] offense, the court shall impose upon the offender a mandatory term of local incarceration or a mandatory prison term in accordance with the following: (1) Except as provided in division (G)(2) of this section, the court shall impose upon the offender a mandatory term of local incarceration of Suggested State Legislation - 123

Gross Sexual Imposition With A Controlled Substance 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211

[sixty (60)] days as specified in [insert citation] and shall not reduce the term pursuant to [insert citation,] or any other provision of [insert citation.] The court that imposes a mandatory term of local incarceration under this division shall specify whether the term is to be served in a jail, a community-based correctional facility, a halfway house, or an alternative residential facility, and the offender shall serve the term in the type of facility specified by the court. The court shall not sentence the offender to a prison term and shall not specify that the offender is to serve the mandatory term of local incarceration in prison. A mandatory term of local incarceration imposed under division (G)(1) of this section is not subject to extension under [insert citation,] to a period of post-release control under [insert citation,] or to any other [insert citation] provision that pertains to a prison term. (2) If the offender previously has been sentenced to a mandatory term of local incarceration pursuant to division (G)(1) of this section for a [fourth degree felony] [OMVI] offense, the court shall impose upon the offender a mandatory prison term of [sixty (60)] days as specified in [insert citation] and shall not reduce the term pursuant to [insert citation,] or any other provision of the [insert citation.] In no case shall an offender who once has been sentenced to a mandatory term of local incarceration pursuant to division (G)(1) of this section for a [fourth degree felony] [OMVI] offense be sentenced to another mandatory term of local incarceration under that division for a [fourth degree felony] [OMVI] offense. The court shall not sentence the offender to a community control sanction under [insert citation.] The [Department of Rehabilitation and Correction] may place an offender sentenced to a mandatory prison term under this division in an [intensive program prison] established pursuant to [insert citation] if the [department] gave the sentencing judge prior notice of its intent to place the offender in an [intensive program prison] established under that section and if the judge did not notify the [department] that the judge disapproved the placement. (H) If an offender is being sentenced for a [sexually oriented offense] committed on or after the effective date of this amendment, the judge shall require the offender to submit to a DNA specimen collection procedure pursuant to [insert citation] if either of the following applies: (1) The offense was a [sexually violent offense,] and the offender also was convicted of or pleaded guilty to a [sexually violent predator specification] that was included in the indictment, count in the indictment, or information charging the [sexually violent offense.] (2) The judge imposing sentence for the [sexually oriented offense] determines pursuant to [insert citation] that the offender is a [sexual predator.] (I) If an offender is being sentenced for a [sexually oriented offense] committed on or after the effective date of this amendment, the judge shall

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Gross Sexual Imposition With A Controlled Substance 212 213 214 215 216 217 218 219

include in the sentence a summary of the offender s duty to register pursuant to [insert citation,] the offender s duty to provide notice of a change in residence address and register the new residence address pursuant to [insert citation,] the offender s duty to periodically verify the offender s current residence address pursuant to [insert citation,] and the duration of the duties. The judge shall inform the offender, at the time of sentencing, of those duties and of their duration and, if required under [insert citation,] shall perform the duties specified in [insert citation.]

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Section 7. [Sentencing.] (A) Except as provided in division (C), (D)(2), (D)(3), (D)(4), or (G) of this section and except in relation to an offense for which a sentence of [death] or [life imprisonment] is to be imposed, if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender pursuant to this section and is not prohibited by [insert citation] from imposing a prison term on the offender, the court shall impose a definite prison term that shall be [one (1)] of the following: (1) For a [felony of the first degree,] the prison term shall be [three (3),] [four (4,] [five (5),] [six (6),] [seven (7),] [eight (8),] [nine (9),] or [ten (10)] years. (2) For a [felony of the second degree,] the prison term shall be [two (2),] [three (3),] [four (4),] [five (5),] [six (6),] [seven (7),] or [eight (8)] years. (3) For a [felony of the third degree,] the prison term shall be [one (1),] [two (2),] [three (3),] [four (4),] or [five (5)] years. (4) For a [felony of the fourth degree,] the prison term shall be [six (6),] [seven (7),] [eight (8),] [nine (9),] [ten (10),] [eleven (11),] [twelve (12),] [thirteen (13),] [fourteen (14),] [fifteen (15),] [sixteen (16),] [seventeen (17),] or [eighteen (18)] months. (5) For a [felony of the fifth degree,] the prison term shall be [six (6),] [seven (7),] [eight (8),] [nine (9),] [ten (10),] [eleven (11),] or [twelve (12)] months. (B) Except as provided in division (C), (D)(2), (D)(3), or (G) of this section, in section 3, or in [insert citation,] if the court imposing a sentence upon an offender for a [felony] elects or is required to impose a prison term on the offender and if the offender previously has not served a prison term, the court shall impose the [shortest] prison term authorized for the offense pursuant to division (A) of this section, unless the court finds on the record that the [shortest] prison term will demean the seriousness of the offender s conduct or will not adequately protect the public from future crime by the offender or others. (C) Except as provided in division (G) of this section or [insert citation,] the court imposing a sentence upon an offender for a [felony] may impose the [longest] prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the Suggested State Legislation - 125

Gross Sexual Imposition With A Controlled Substance 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79

offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section. (D) (1) (a) (i) Except as provided in division (D)(1)(b) of this section, if an offender who is convicted of or pleads guilty to a [felony] also is convicted of or pleads guilty to a specification of the type described in [insert citation] that charges the offender with having a firearm that is an automatic firearm or that was equipped with a firearm muffler or silencer on or about the offender s person or under the offender s control while committing the [felony,] a specification of the type described in [insert citation] that charges the offender with having a firearm on or about the offender s person or under the offender s control while committing the offense and displaying the firearm, brandishing the firearm, indicating that the offender possessed the firearm, or using it to facilitate the offense, or a specification of the type described in [insert citation] that charges the offender with having a firearm on or about the offender s person or under the offender s control while committing the [felony,] the court, after imposing a prison term on the offender for the felony under division (A), (D)(2), or (D)(3) of this section, shall impose an additional prison term, determined pursuant to this division, that shall not be reduced pursuant to [insert citation,] or any other provision of [insert citation.] If the specification is of the type described in [insert citation,] the additional prison term shall be [six (6)] years. If the specification is of the type described in [insert citation,] the additional prison term shall be [three (3)] years. If the specification is of the type described in [insert citation,] the additional prison term shall be [one (1)] year. A court shall not impose more than [one (1)] additional prison term on an offender under this division for [felonies] committed as part of the same act or transaction. If a court imposes an additional prison term under division (D)(1)(a)(ii) of this section, the court is not precluded from imposing an additional prison term under this division. (ii) Except as provided in division (D)(1)(b) of this section, if an offender who is convicted of or pleads guilty to a violation of [insert citation] or to a [felony] that includes, as an essential element, purposely or knowingly causing or attempting to cause the death of or physical harm to another, also is convicted of or pleads guilty to a specification of the type described in [insert citation] that charges the offender with committing the offense by discharging a firearm from a motor vehicle, as defined in [insert citation,] other than a manufactured home, as defined in [insert citation,] the court, after imposing a prison term on the offender for the violation of [insert citation] or for the other [felony] offense under division (A), (D)(2), or (D)(3) of this section, shall impose an additional prison term of [five (5)] years upon the offender that shall not be reduced pursuant to [insert citation,] or any other provision of [insert citation.] A court shall not impose

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more than [one (1)] additional prison term on an offender under this division for [felonies] committed as part of the same act or transaction. If a court imposes an additional prison term on an offender under this division relative to an offense, the court also shall impose an additional prison term under division (D)(1)(a)(i) of this section relative to the same offense, provided the criteria specified in that division for imposing an additional prison term are satisfied relative to the offender and the offense. (b) The court shall not impose any of the additional prison terms described in division (D)(1)(a) of this section upon an offender for a violation of [insert citation.] The court shall not impose any of the additional prison terms described in that division upon an offender for a violation of [insert citation] unless all of the following apply: (i) The offender previously has been convicted of [aggravated murder,] [murder,] or any [felony of the first or second degree.] (ii) Less than [five (5)] years have passed since the offender was released from prison or post-release control, whichever is later, for the prior offense. (2) (a) If an offender who is convicted of or pleads guilty to a [felony] also is convicted of or pleads guilty to a specification of the type described in [insert citation] that the offender is a [repeat violent offender,] the court shall impose a prison term from the range of terms authorized for the offense under division (A) of this section that may be the [longest] term in the range and that shall not be reduced pursuant to [insert citation,] or any other provision of [insert citation.] If the court finds that the [repeat violent offender,] in committing the offense, caused any physical harm that carried a substantial risk of death to a person or that involved substantial permanent incapacity or substantial permanent disfigurement of a person, the court shall impose the [longest] prison term from the range of terms authorized for the offense under division (A) of this section. (b) If the court imposing a prison term on a [repeat violent offender] imposes the [longest] prison term from the range of terms authorized for the offense under division (A) of this section, the court may impose on the offender an additional definite prison term of [one (1),] [two (2),] [three (3),] [four (4),] [five (5),] [six (6),] [seven (7),] [eight (8),] [nine (9),] or [ten (10)] years if the court finds that both of the following apply with respect to the prison terms imposed on the offender pursuant to division (D)(2)(a) of this section and, if applicable, divisions (D)(1) and (3) of this section: (i) The terms so imposed are inadequate to punish the offender and protect the public from future crime, because the applicable factors under [insert citation] indicating a greater likelihood of recidivism outweigh the applicable factors under that section indicating a lesser likelihood of recidivism. (ii) The terms so imposed are demeaning to the seriousSuggested State Legislation - 127

ness of the offense, because [one (1)] or more of the factors under [insert citation] indicating that the offenderÂ&#x2019;s conduct is more serious than conduct normally constituting the offense are present, and they outweigh the applicable factors under [insert citation] indicating that the offenderÂ&#x2019;s conduct is less serious than conduct normally constituting the offense. (3) (a) Except when an offender commits a violation of [insert citation] and the penalty imposed for the violation is [life imprisonment] or commits a violation of [insert citation,] if the offender commits a violation of [insert citation] and [insert citation] requires the imposition of a [ten (10)] year prison term on the offender or if a court imposing a sentence upon an offender for a [felony] finds that the offender is guilty of a specification of the type described in [insert citation,] that the offender is a [major drug offender,] is guilty of [corrupt activity] with the most serious offense in the pattern of [corrupt activity] being a [felony of the first degree,] or is guilty of an attempted forcible violation of section 3 with the victim being under [thirteen (13)] years of age and that attempted violation is the [felony] for which sentence is being imposed, the court shall impose upon the offender for the [felony] violation a [ten (10)] year prison term that cannot be reduced pursuant to [insert citation.] (b) The court imposing a prison term on an offender under division (D)(3)(a) of this section may impose an additional prison term of [one (1),] [two (2),] [three (3),] [four (4),] [five (5),] [six (6),] [seven (7),] [eight (8),] [nine (9),] or [ten (10)] years, if the court, with respect to the term imposed under division (D)(3)(a) of this section and, if applicable, divisions (D)(1) and (2) of this section, makes both of the findings set forth in divisions (D)(2)(b)(i) and (ii) of this section. (4) If the offender is being sentenced for a [fourth degree felony] [OMVI] offense and if division (G)(2) of section 6 requires the sentencing court to impose upon the offender a mandatory prison term, the sentencing court shall impose upon the offender a mandatory prison term in accordance with that division. In addition to the mandatory prison term, the sentencing court may sentence the offender to an additional prison term of any duration specified in division (A)(4) of this section minus the [sixty (60)] days imposed upon the offender as the mandatory prison term. The total of the additional prison term imposed under division (D)(4) of this section plus the [sixty (60)] days imposed as the mandatory prison term shall equal [one (1)] of the authorized prison terms specified in division (A)(4) of this section. If the court imposes an additional prison term under division (D)(4) of this section, the offender shall serve the additional prison term after the offender has served the mandatory prison term required for the offense. The court shall not sentence the offender to a [community control sanction] under [insert citation.] (E) (1) If a mandatory prison term is imposed upon an offender pursuant to division (D)(1)(a) of this section for having a firearm on or about the

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offender s person or under the offender s control while committing a [felony] or if a mandatory prison term is imposed upon an offender pursuant to division (D)(1)(b) of this section for committing a felony specified in that division by discharging a firearm from a motor vehicle, the offender shall serve the mandatory prison term consecutively to and prior to the prison term imposed for the underlying felony pursuant to division (A), (D)(2), or (D)(3) of this section or any other section of [insert citation] and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender. (2) If an offender who is an inmate in a jail, prison, or other residential detention facility violates [insert citation,] if an offender who is under detention at a detention facility commits a [felony] violation of [insert citation,] or if an offender who is an inmate in a jail, prison, or other residential detention facility or is under detention at a detention facility commits another [felony] while the offender is an escapee in violation of [insert citation,] any prison term imposed upon the offender for [one (1)] of those violations shall be served by the offender consecutively to the prison term or term of imprisonment the offender was serving when the offender committed that offense and to any other prison term previously or subsequently imposed upon the offender. As used in this division, detention and detention facility have the same meanings as in [insert citation.] (3) If a prison term is imposed for a violation of [insert citation,] the offender shall serve that prison term consecutively to any other prison term. (4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to [insert citation,] or was under [post-release control] for a prior offense. (b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender s conduct. (c) The offender s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. (5) When consecutive prison terms are imposed pursuant to division (E)(1), (2), (3), or (4) of this section, the term to be served is the aggregate of all of the terms so imposed. Suggested State Legislation - 129

Gross Sexual Imposition With A Controlled Substance 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227

(F) If a court imposes a prison term of a type described in [insert citation,] it shall include in the sentence a requirement that the offender be subject to a period of [post-release control] after the offenderÂ&#x2019;s release from imprisonment, in accordance with [insert citation.] If a court imposes a prison term of a type described in [insert citation,] it shall include in the sentence a requirement that the offender be subject to a period of [postrelease control] after the offenderÂ&#x2019;s release from imprisonment, in accordance with [insert citation,] if the parole board determines that a period of [post-release control] is necessary. (G) If a person is convicted of or pleads guilty to a [sexually violent offense] and also is convicted of or pleads guilty to a [sexually violent predator specification] that was included in the indictment, count in the indictment, or information charging that offense, the court shall impose sentence upon the offender in accordance with [insert citation] applies regarding the prison term or term of [life imprisonment without parole] imposed upon the offender and the service of that term of imprisonment.

Section 8. [Severability.] [Insert severability clause.]

Section 9. [Repealer.] [Insert repealer clause.]

Section 10. [Effective Date.] [Insert effective date.]

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Hospital Conversions This Act requires nonprofit health organizations to notify the state in writing 90 days in advance if the organizations intend to sell their facilities. The written notification shall include specific information enumerated in the Act, including a general summary of the intended transaction, a general description of the assets involved and their intended use and the anticipated date of completion. The written notification is a public record. Within 30 days after the written notification is sent, the parties to the transaction shall select a person to conduct a public hearing and set a time and place for the public hearing. Within the same 30 days the interested parties shall also publish a notice of the hearing at least three consecutive times in at least one newspaper of general circulation in the county where the nonprofit health care entity has its principle place of business. The public hearing shall be held within 10 days after the last publication. At the public hearing, the involved parties shall provide a written summary with the information enumerated in the Act regarding the impact of the intended transaction. A final report of the public hearing proceedings shall be prepared by the hearing officer and sent to the state Corporation Commission, the state Department of Health Services, and the state attorney general. Submitted as: Arizona CH 73, laws of 1997 (H Version of SB 1288) Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as an Â&#x201C;Act Relating to Hospital and Community Health Center Mergers.Â&#x201D;

1 2 3 4 5 6 7 8 9

Section 2. [Tax Exempt Nonprofit Corporation Sale of Assets; Notice; Public Hearing; Exceptions.] (A) Except as provided in subsection D of this section and [insert citation,] any person who intends to purchase, lease or otherwise acquire all or substantially all of the assets of a tax exempt corporation described in [insert citation,] or all or substantially all of the assets located in this state of a tax exempt foreign corporation described in section 501(c)(3) of the Internal Revenue Code of 1986 and is conducting affairs in this state, shall comply with subsection B of this section before such purSuggested State Legislation - 131

Hospital Conversions 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54

chase, lease or acquisition if either: (1) The person is a tax exempt organization described in [insert citation,] or section 501(c)(3) of the Internal Revenue Code of 1986 but intends to use in an unrelated trade or business, determined by applying section 43-1201, paragraph 4 or section 513(a) of the Internal Revenue Code of 1986 to such organization, any substantial portion of the assets to be acquired which were not being used in an unrelated trade or business of the corporation or foreign corporation conveying the assets immediately before the proposed purchase, lease or acquisition. (2) The person is not a tax exempt organization described in [insert citation] or section 501(c)(3) of the Internal Revenue Code of 1986. (B) A person subject to the requirements of this section shall give public notice of the intended transaction in accordance with subsection C of this section and shall hold a public hearing on the intended transaction no less than [ten (10)] days after the first publication of the notice and no less than [ten (10)] days before the intended purchase, lease or acquisition occurs. The sole purpose of the public hearing is to receive public comment regarding the proposed transaction. The public hearing shall be held before at least [two (2)] representatives of the person intending to purchase, lease or otherwise acquire the assets of the corporation or foreign corporation and at least [two (2)] representatives of the corporation or foreign corporation. (C) Notice of the intended transaction shall include the time, date and place of the public hearing, the names of the parties to the transaction, a general summary of the intended transaction, a general description of the assets to be purchased, leased or otherwise acquired and a general description of the intended use of the assets after the completion of the transaction. The notice shall be published [three (3)] consecutive times in a newspaper of general circulation in the county of the known place of business of the corporation or foreign corporation from which the assets are intended to be purchased, leased or otherwise acquired. The first notice shall be published no less than [twenty (20)] days before the intended purchase, lease or acquisition occurs. (D) The requirements of subsections B and C of this section do not apply to the purchase, lease or other acquisition of assets under this section from a domestic or foreign corporation as provided in this section if any of the following applies: (1) The transaction involves assets having a book value at the time of the transaction, net of accumulated depreciation, of less than [five hundred thousand (500,000)] dollars. (2) The transaction is in the usual course of business of the transferor or in connection with the mortgage or pledge of any or all property and assets of the corporation or foreign corporation whether or not in its usual and regular course of business. (3) The transferor has assets immediately prior to such transaction,

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Hospital Conversions 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84

with a book value of less than [one million (1,000,000)] dollars, net of accumulated depreciation. (4) The transaction is to enable the transferor to finance the purchase of assets or to refinance assets already owned by it, or if, after the transaction has been completed, the transferor continues to have possession of the assets purchased, leased or otherwise acquired for use in the usual and regular course of its business. (5) The transferor offers goods or services only to members who are entitled to vote for its board of directors. (6) The transferor is organized for religious purposes and does not have, as a substantial portion of its business, the offering of goods or services on a regular basis to the public for remuneration. (7) The purchase, lease or sale of assets as described in subsection A of this section by the United States, this state, a political subdivision of this state or an agency or instrumentality of such a governmental entity. (8) The purchase, lease or sale of assets as described in subsection A of this section by a hospital, medical, dental or optometric service corporation licensed pursuant to [insert citation.] (E) For the purpose of subsection D, paragraph 6 of this section: (1) Goods and services shall include, but are not limited to, medical, hospital, dental or counseling or social services offered on a regular basis to the public for remuneration. (2) A transferor organized for religious purposes includes a corporation or foreign corporation that controls or is controlled directly or indirectly by a corporation or foreign corporation organized for religious purposes. (F) The exemption provided by subsection D, paragraph 7 of this section does not apply to a corporation or foreign corporation which provides services to or operates assets of such a governmental entity pursuant to a lease or contract.

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Section 3. [Hospital and Community Health Center Mergers and Other Transactions; Definitions.] (1) Assets means all real, personal, tangible and intangible property and rights in property, including cash, buildings, equipment, investments and contracts with other entities. (2) Community benefit activity means any activity furthering community benefit purposes including any health care activity that includes education, prevention, promotion of community health, indigent care or any other charitable purpose. (3) Community benefit assets means every asset that has been used in connection with community benefit activity during the previous year. (4) Community benefit purposes means those purposes for which Suggested State Legislation - 133

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an entity may qualify for exemption pursuant to [insert citation,] or section 501(c)(3) of the Internal Revenue Code, or for similar activity engaged in by a for-profit organization. (5) Community benefit organization means a nonprofit charitable organization that is tax exempt under section 501(c)(3) of the Internal Revenue Code and whose mission is solely to engage in community benefit activities. (6) Community health center means a primary care facility that provides medical care in medically underserved areas as designated in [insert citation] or in medically underserved areas or medically underserved populations as designated by the United States Department of Health and Human Services. (7) Nonprofit health care entity means a licensed hospital or community health center that holds tax exempt status pursuant to [insert citation,] or section 501(c)(3) of the Internal Revenue Code. (8) Notice of completion means the written notice that is sent by the [hearing officer] to the [chairman of the corporation commission] after the [hearing officer] holds a public hearing and files a summary report pursuant to section 5.

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Section 4. [Scope; Included Transactions; Excluded Transactions.] (A) Except as provided in subsections B and C of this section, this Act applies to any nonprofit health care entity that intends to sell, transfer, lease, exchange, option, convey, convert, give, merge or otherwise dispose of all or substantially all of its assets to or with another nonprofit health care entity or a for profit entity, including entering into a joint venture involving all or substantially all of its assets. The requirements of section 2 do not apply to a nonprofit health care entity. (B) This Act does not apply to any physician or licensed health care provider contract with a hospital or community health center. This article shall not affect any contract entered into between a physician or licensed health care provider or group of physicians or licensed health care providers with a licensed hospital. (C) This Act does not apply to transactions: (1) Involving a transfer of community benefit assets of a licensed hospital or community health center with a book value of less than [one million (1,000,000)] dollars, net of accumulated depreciation as of the date of the closing date of the intended transaction. (2) Enabling a party to finance the purchase of assets, refinance assets, mortgage or pledge assets already owned by the party, whether or not in its usual course of business. (3) Between or among a nonprofit health care entity and affiliated nonprofit entities that are part of a common line of ownership or control.

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Section 5. [Public Hearing; Notice; Requirements; Summary Report] (A) No later than [ninety (90)] days before the anticipated closing of the intended transaction, any nonprofit health care entity that intends to engage in any of the transactions described in section 4, subsection a shall give written notice to the [chairman of the corporation commission,] the [director of the department of health services] and the [attorney general.] The written notice shall include all of the following information: (1) The names, addresses and telephone numbers of the parties to the intended transaction. (2) The names, addresses and telephone numbers of the attorneys or other persons who represent the parties in connection with the intended transaction. (3) A general summary of the intended transaction. (4) A general description of the assets involved in the intended transaction and the intended use of the assets after the closing of the intended transaction. (5) A general summary of all collateral transactions that relate to the intended transaction, including the names, addresses and telephone numbers of the parties involved in the collateral transactions. (6) The anticipated date of completion of the intended transaction. (B) The notice and information required pursuant to subsection a of this section and information submitted pursuant to subsection H of this section are public records. (C) Within [thirty (30)] days after the nonprofit health care entity sends the written notice prescribed in subsection a of this section, the parties to the intended transaction shall: (1) Select a [hearing officer] to conduct the public hearing required by this section and determine a time and place within this state for the public hearing with the agreement of both the [chairman of the corporation commission] and the [director of the department of health services.] (2) Publish a notice of the time and place for the public hearing at least [three (3)] consecutive times in at least [one (1)] newspaper of general circulation in the county in which the nonprofit health care entity has its principal place of business. (D) The [hearing officer] shall hold the public hearing within [ten (10)] days after the last publication of the public notice. (E) The purpose of the public hearing is to provide the information described in subsection F of this section and to receive comments from the public and other interested parties. (F) The parties shall present written summary information at the public hearing that sets forth all of the following: (1) The extent to which the intended transaction impacts community benefit activities and is consistent with community benefit purposes, including a description of the resources that will be committed to commuSuggested State Legislation - 135

Hospital Conversions 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 70 71 72 73 74 75 76 77 78 79 80

nity benefit purposes following the intended transaction. (2) Whether the intended transaction creates or has the likelihood of creating an adverse effect on the access to or availability or cost of health care services. (3) Whether any director, officer, agent or employee of the entity will receive any community benefit asset or will benefit directly or indirectly from the intended transaction, except for the receipt of compensation for professional services relating to the intended transaction for normal compensation for services rendered. (4) The extent to which the nonprofit health care entity used due diligence in the selection of the entity that will receive any community benefit asset and in the negotiation of the price and other terms and conditions of the transaction. (5) The extent to which the parties will continue to use the nonprofit health care entityÂ&#x2019;s community benefit assets for community benefit purposes following the intended transaction, or, if applicable, the proceeds of the disposition of the assets will be deposited in a community benefit organization for community benefit purposes. (6) Whether any initial board of directors members of any entity changed or created by the intended transaction will reside in or near the communities affected by the intended transaction. (7) That any community benefit organization established to hold the proceeds of the disposition of assets is organized for community benefit purposes as required under federal and state law. (G) The [attorney general] may present information at the public hearing. (H) The [hearing officer] conducting the public hearing shall compile a summary report of the public hearing proceedings and shall transmit the summary report, a notice of completion and copies of all written information presented at the hearing to the [chairman of the corporation commission,] with copies to the [director of the department of health services] and the [attorney general.] (I) The parties to the intended transaction shall pay for all costs associated with the [hearing officer,] notice, publication of notice, public hearing and summary report.

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Section 6. [Applicability.] (A) Nothing in this Act: (1) Affects the provisions of [insert citation] regarding the [corporation commissionÂ&#x2019;s] acceptance or denial of new, restated or amended articles of incorporation. (2) Affects the operation of state or federal antitrust laws or the [attorney generalÂ&#x2019;s] enforcement of those laws. (3) Is intended to create any private or governmental right or cause

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of action relating to the transaction or related parties. (B) This Act does not apply to any transactions for which a letter of intent or memorandum of understanding or similar documentation was executed on or before [December 31, 1996.]

Section 7. [Severability.] [Insert severability clause.]

Section 8. [Repealer.] [Insert repealer clause.]

Section 9. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 137

Inmate Assaults with Body Fluids or Other Hazardous Substances This Act directs that inmates commit a crime of assault in the second degree if they throw or expel infected body fluids or other hazardous material at prison employees or others who provide prison services. The law directs that inmates who commit such crimes can be tested for communicable diseases and that the test results can be disclosed to their crime victims. Submitted as: Colorado CH 270 (Laws of 1997) Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2 3

Section 1. [Short Title.] This Act may be cited as An Act to Impose Penalties on Inmates Who Assault Employees of Detention Facilities Through Contact With Substances That May Cause Injury or Disease.

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Section 2. [Assault in the Second Degree.] (1) A person commits the crime of assault in the second degree if: (a) While lawfully confined in a detention facility within this state, a person with intent to infect, injure, harm, harass, annoy, threaten, or alarm a person in a detention facility whom the actor knows or reasonably should know to be an employee of a detention facility, causes such employee to come into contact with blood, seminal fluid, urine, feces, saliva, mucus, vomit, or any toxic, caustic, or hazardous material by any means, including but not limited to throwing, tossing, or expelling such fluid or material. (2) (a) Any adult or juvenile who is bound over for trial for the offense described in subparagraph (1)(a) of this section, subsequent to a preliminary hearing or after having waived the right to a preliminary hearing, any person who is indicted for or is convicted of any such offense, or any person who is determined to have provided blood, seminal fluid, urine, feces, saliva, mucus, or vomit to a person bound over for trial for, indicted for, or convicted of such an offense shall be ordered by the court to submit to a medical test for communicable diseases and to supply blood, feces, urine, saliva, or other bodily fluid required for the test. The results of such test shall be reported to the court or the court s designee, who shall then dis-

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close the results to any victim of the offense who requests such disclosure. Review and disclosure of medical test results by the court shall be closed and confidential, and any transaction records relating thereto shall also be closed and confidential. If a person subject to a medical test for communicable diseases pursuant this subparagraph voluntarily submits to a medical test for communicable diseases, the fact of such person s voluntary submission shall be admissible in mitigation of sentence if the person is convicted of the charged offense. (b) In addition to any other penalty provided by law, the court may order any person who is convicted of the offense described in subparagraph (1)(a) of this section to meet all or any portion of the financial obligations of medical tests performed on and treatment prescribed for the victim or victims of the offense. (c) At the time of sentencing, the court may order that an offender described in subparagraph (2)(b) of this section be put on a period of probation for the purpose of paying the testing and treatment costs of the victim or victims; except that the period of probation, when added to any time served, shall not exceed the maximum sentence that can be imposed for the offense. (3) (a) As used in this Act, detention facility means any building, structure, enclosure, vehicle, institution, or place, whether permanent or temporary, fixed or mobile, where persons are or may be lawfully held in custody or confinement under the authority of this state or any political subdivision of this state. (b) As used in this Act, employee of a detention facility includes employees of the [Department of Corrections,] employees of any agency or person operating a detention facility, law enforcement personnel, and any other persons who are present in or in the vicinity of a detention facility and are performing services for a detention facility. employee of a detention facility does not include a person lawfully confined in a detention facility.

Section 3. [Severability.] [Insert severability clause.]

Section 4. [Repealer.] [Insert repealer clause.]

Section 5. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 139

Institutions of Public Charity (Statement) Although most states have defined charities in their tax codes or other statutes, this item may be of interest to states that want to clarify or update their definitions of charities. It also contains two provisions that may be unique; voluntary payment to localities and unfair competition clause. This Statement is excerpted from a state legislative summary. Pennsylvania s Act 55 of 1997 (HB 55, P.N. 2575) provides a statutory definition of the term institution of purely public charity. The Pennsylvania Constitution permits the General Assembly to exempt such institutions from tax, but it does not define the term. Since the term was first used in the Constitution of 1874, case law has been used to determine the qualifications for exemption. The Pennsylvania Supreme Court, in the 1985 Hospital Utilization Project (HUP) case, outlined the five criteria which must be met in order for an institution to qualify for exemption. This legislation uses the criteria established by the Court and details what the institution must do to meet each of the criteria. Although the Court intended the HUP decision to be a synthesis of prior case law, some local governments had exploited certain ambiguities in the language of the decision in an attempt to reduce the number of institutions which have historically qualified for tax exemption. Act 55 provides statutory guidelines to assist charitable institutions and governmental entities in determining which organizations meet the criteria for exemption. This legislation, in addition to establishing statutory standards for exemption, defines certain property owned by state-related universities as public property for tax-exemption purposes. It requires institutions qualifying for tax exemption to disclose certain information, restricts unfair competition between tax-exempt institutions and small businesses and provides for voluntary agreements between local governments and institutions of purely public charity. Other than the definition of the term institution of purely public charity, Act 55 addresses two areas of national significance which have been the subject of attention from outside the commonwealth. First, the Act grants institutions of purely public charity a number of incentives to enter into voluntary agreements with political subdivisions. The Act also contains intent language encouraging financially secure institutions to enter into voluntary agreements to help defray some of the cost of local government services. (More detail on the voluntary-agreement section is contained in item 3 of this analysis.) Second, the Act prohibits institutions of purely public charity, with certain exceptions and limitations, from using their tax-exempt status to unfairly compete with small business. (More detail on the unfair- competition section is contained in item 4 of this analysis.) 140 - The Council of State Governments

Institutions of Public Charity (Statement) The key event leading to this Act is a Pa. Supreme Court decision involving an organization called Hospital Utilization Project (HUP). The Supreme Court, in the opinion delivered on that case, took the opportunity to outline the standards which the court determined must be met for an institution to qualify as an institution of purely public charity. In this decision, the Court attempted to synthesize the principles contained in its prior decisions into five general criteria. The Court did not give specific guidance on how to apply the newly formulated criteria to the various types of institutions involved in serving the public. This lack of specific guidance presented some uncertainty as to how the criteria should be interpreted. The uncertainty created an opportunity for some local governments to attempt to define the criteria in ways that limited the number of institutions that had historically qualified for exemption. These local governments treated the criteria as a departure from prior case law instead of a synthesis of prior decisions. In the time elapsing between the HUP decision and the enactment of HB 55, the courts ruled on various cases attempting to further define the five criteria and apply them to specific fact situations. It proved to be a difficult task because no two charitable institutions serve the public in exactly the same way. The multitude of decisions by the various common pleas courts and the Commonwealth Court did not settle the debate. However, two major Pa. Supreme Court decisions in the post-HUP period (St. Margaret Seneca Place - 1994 and Washington and Jefferson College - 1997) have reigned in some of the more excessive local government interpretations of the criteria, but the need remained for statutory guidance. Act 55 is a response to that need.

Major Provisions 1. Criteria for Designation as an Institution of Purely Public Charity. General Rule. All institutions must meet each of the five following criteria to qualify as an institution of purely public charity. There is generally more than one way for an institution to demonstrate that it meets a specific criterion. It is important to note that qualification as an institution of purely public charity does not automatically mean that all property owned by the institution is exempt from tax. The institution must prove to the local assessment board that the property is used for an exempt purpose as required under current law. Charitable Purpose. An institution must be organized and operated to fulfill charitable purposes (i.e., relief of poverty, advancement of education, advancement of religion, prevention and treatment of disease or injury, government or municipal purposes, or accomplishment of social, moral or physical objectives important to and beneficial to the community). Suggested State Legislation - 141

Institutions of Public Charity (Statement) Private Profit Motive. The institution must operate free from any private profit motive. This means that neither the institution s net earnings nor donations it receives may inure to the benefit of private shareholders or other individuals. Furthermore, the compensation of any employee, officer or director cannot be based primarily upon the financial performance of the institution. Any excess of revenue over expenditures must be used to further the institution s charitable purpose or fund other nonprofit charitable institutions. The institution must incorporate provisions in its articles of incorporation or governing legal documents which prohibit the private issuance to any person in the event of a sale or dissolution of the institution. Community Service. The institution must donate or render gratuitously a substantial portion of its services. The term substantial in this context means something of value as opposed to an amount which is insignificant. This prevents organizations making only token donations from qualifying under this criterion. Satisfaction of this criterion is measured primarily by determining the amount of uncompensated goods or services provided by the organization. Various numerical tests are then used to measure whether a substantial portion of the institution s goods or services have been rendered gratuitously. Charity to Persons. An institution must benefit a substantial and indefinite class of persons who are legitimate subjects of charity. This section requires that the general public (or a broad segment of the general public) be the beneficiary of the goods or services provided by the institution. These individuals must be unable to provide themselves the goods or services the institution provides for them. Institutions that have membership are not excluded from meeting this criterion as long as their membership is not predetermined in number and cannot be arbitrarily denied by a vote of the existing members. Furthermore, an institution is not disqualified if it provides its goods or services only to those who are in need of its goods or services (i.e., a hospital which only serves people in need of health-care services). Organizations that serve a private membership or have primarily a private interest would not qualify. The following types of organizations generally would not be exempt (unless they qualified for exemption under section 501(c)(3) of the Internal Revenue Code) because they serve primarily a private membership and do not serve the general public: associations of employees, labor organizations, agricultural or horticultural organizations, business leagues, clubs organized for recreation or pleasure and fraternal beneficiary societies, orders or associations. Government Service. An institution must relieve the government of some of its burden. The burden of government is interpreted to include services that the government currently provides, has provided in the past or that the government funds. It also includes services that provide a service to the public which directly or indirectly reduce dependence on government pro142 - The Council of State Governments

Institutions of Public Charity (Statement) grams or relieve or lessen the burden borne by government for the advancement of social, moral, educational or physical objectives. 2. Rebuttable Presumption for Institutions Approved by the Department of Revenue. An institution which the Department of Revenue has determined meets the criteria in the Act may assert a presumption that it meets the criteria for local property tax-exemption purposes. When a presumption is applicable, the burden of proof for denying status as an institution of purely public charity is on the political subdivision which challenges the institution. An institution with annual program service revenue exceeding $10 million may assert the presumption only with respect to a political subdivision with which the institution has a voluntary agreement to make payments of cash, property or services. The rationale for the rebuttable presumption is that the Department of Revenue must use the same standards as a political subdivision for determining whether an institution meets the criteria as an institution of purely public charity. Without all of the additional bureaucracy which may be required by establishing a statewide certification program, the General Assembly can accomplish its goal of fostering increased uniformity with respect to determination of qualification for institutions of purely public charity. Taxability of individual parcels is still based on the use of the parcels, as determined under existing assessment law. A political subdivision may challenge the exempt status of an institution with a valid sales tax exemption, but would have to demonstrate, through a preponderance of the evidence, that the institution does not meet the five criteria, as defined in Act 55. 3. Voluntary Agreements. Act 55 contains provisions creating incentives for institutions of purely public charity to enter into voluntary agreements with political subdivisions. All contributions received pursuant to voluntary agreements shall be used by political subdivisions to help ensure that essential governmental, public or community services will continue to be provided in a manner that will permit an institution to fulfill its charitable mission. Institutions and political subdivisions may establish public-service foundations for the purpose of receiving contributions from institutions of purely public charity and making grants or distributions to participating political subdivisions. Political subdivisions which receive a grant or distribution from a public-service foundation are prohibited from assessing or seeking a separate contribution for services from institutions participating in a foundation. Suggested State Legislation - 143

Institutions of Public Charity (Statement) An incentive for larger institutions (greater than $10 million in annual program service revenues) is the limitation on the use of the rebuttable presumption unless the institution has a voluntary agreement in place with a political subdivision (see item 2 above). All institutions which have a voluntary agreement in place with a political subdivision will be eligible to claim the contribution at either 150%, 250% or 350% of its actual value (depending upon the size of the contribution) for the purpose of meeting the quantitative standards contained in the community service portion of the five-part test. Finally, an institution with a voluntary agreement is deemed to have met the government-service portion of the five-part test. The Act provides that nothing in the Act shall be construed to affect, impair, terminate or supersede any contract, agreement or arrangement between an institution and a political subdivision in effect on or before the effective date of this Act which authorizes or requires payment of taxes, amounts in lieu of taxes, or other charges or fees for the services of a political subdivision. Furthermore, nothing in the Act shall be construed to impair, or otherwise inhibit, the right or ability of any institution seeking or possessing an exemption as an institution of purely public charity, a publicservice foundation or political subdivision from executing voluntary agreements after the effective date of the Act. 4. Unfair Compensation with Small Business. Institutions of purely public charity shall not fund, capitalize, guarantee the indebtedness of, lease obligations of, or subsidize a commercial business that is unrelated to the institution s charitable purpose as stated in the institution s charter or governing legal documents, with certain exceptions. The prohibitions would not apply to: 1) institutions which do not substantially expand the scope of a commercial business existing on the effective date of the Act; 2) any commercial business that is intended only for the use of an institution s employees, staff, alumni, faculty, members, students, clients, volunteers, patients or residents; 3) any commercial business which results in only incidental or periodic sales to the public; 4) investments in stocks, bonds or real estate; and 5) activities the institution is formally requested to undertake by the commonwealth or a political subdivision. Small businesses aggrieved by the actions of an institution of purely public charity may file a complaint with the Department of State, which would then initiate an arbitration process. If either the institution of purely public charity or the small business are dissatisfied with the results of the arbitration, they may appeal to the court of common pleas. 5. Accountability/Disclosure. Institutions of purely public charity must file a copy of their Internal 144 - The Council of State Governments

Institutions of Public Charity (Statement) Revenue Service Information Return (Form 990 and Schedule A) with the Department of State each year. Institutions which already file the same information with the Department of State under the Solicitation of Funds for Charitable Purposes Act are exempt from requirements of this section. Institutions include information about their organizational affiliates, how these affiliates are organized, the relationship to the filing entity, and the relationship with other nonprofit organizations. Bona fide duly constituted religious institutions and such separate groups or corporations which form an integral part of a religious institution and which are included in a consolidated return filed by the parent organization are exempt from separate filing. Also exempt from filing are institutions which receive contributions of less than $25,000 per year and which have annual program service revenue not exceeding $5 million. The information required under this section would be available to the public. 6. State Related Universities / Federal Government Instrumentalities Property owned by the state-related universities (Pennsylvania State University, University of Pittsburgh, Temple University, and Lincoln University) is deemed to be public property for the purposes of taxation. The public-property exemption does not apply to property owned by the staterelated university, but leased to a for-profit enterprise. Real property owned by a corporation established by an Act of Congress of the United States, that is required to submit annual reports of its activities to Congress containing itemized accounts of all receipts and expenditures after being fully audited by the Department of Defense, is deemed to be property of a federal government instrumentality and thus exempt from all state and local taxation. 7. Effective Date. The bill took effect immediately upon the governorÂ&#x2019;s signature (November 26, 1997). The unfair competition and reporting sections took effect 120 days after enactment. Interested readers should note that the applicable language that is highlighted in this Statement actually starts on page 17 of the bill. They can contact the Pennsylvania legislature to get a copy of the Act.

Suggested State Legislation - 145

Intimidating Legislative Witnesses This Act makes it unlawful for any person to intimidate a legislative witness, by use of a threat, in order to intentionally influence or induce a legislative witness to: Appear or not appear before a committee of the General Assembly; Give or refrain from giving testimony to a committee of the General Assembly; Testify falsely before a committee of the General Assembly; or Avoid legal process summoning the legislative witness to attend and testify before a committee of the General Assembly. The Act makes it unlawful for any person to take any action against a legislative witness for testifying before a committee of the General Assembly. It defines legislative witness as any individual that intends to testify or testifies before a committee of the General Assembly either voluntarily or pursuant to a subpoena issued by any committee of the General Assembly or of either house thereof. It defines threat as the direct communication of an intent to do any act that is intended to harm the health, safety, property, business, or financial condition of the legislative witness. The law specifies the penalties for a violation and allows legislative witnesses to recover damages for injuries suffered through a violation. Submitted as: Colorado CH 201, Laws of 1998 Enacted into law, 1998.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as an Act Concerning Intimidation of Legislative Witnesses.

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Section 2. [Preventing Legislative and Judicial Access to Employees Intimidation of Legislative Witnesses - Penalty.] It is unlawful for any person: (1) To intimidate a legislative witness, by use of a threat, in order to intentionally influence or induce a legislative witness: (i) To appear or not appear before a committee of the [General Assembly;] (ii) To give or refrain from giving testimony to a committee of the [General Assembly;]

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sembly;] or

(iii) To testify falsely before a committee of the [General As-

(iv) To avoid legal process summoning the legislative witness to attend and testify before a committee of the [General Assembly;] or (2) To take any action against a legislative witness for testifying before a committee of the [General Assembly.]

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Section 3. [Definitions.] As used in this Act: (1) legislative witness means any individual that intends to testify or testifies before a committee of the [General Assembly] either voluntarily or pursuant to a subpoena issued by any committee of the [General Assembly] or of either house thereof. (2) threat means to communicate directly the intent to do any act that is intended to harm the health, safety, property, business, or financial condition of the legislative witness.

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Section 4. [Penalties.] Any person violating any provision of this Act is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than [one thousand (1,000)] dollars.

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Section 5. [Damages.] (a) An employee, a franchisee, or an agent or an entity under the control of any person, or a legislative witness may recover damages, including reasonable attorney fees, from any person for injuries suffered through a violation of this Act. (b) Nothing in this Act shall be construed to prohibit an employee, a franchisee, or an agent or an entity under the control of any person, or a legislative witness from pursuing any other right of action permitted pursuant to law for injuries suffered through a violation of this Act.

Section 6. [Severability.] [Insert severability clause.]

Section 7. [Repealer.] [Insert repealer clause.]

Section 8. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 147

Land Bank Authorities This Act enables cities and counties to enter into inter-local cooperation agreements to establish land bank authorities. Localities can establish these authorities to acquire tax-delinquent properties in order to use those properties to provide housing, new industry and jobs for the citizens of the affected localities. A consolidated government may adopt a resolution to establish a land bank authority. Land bank authorities are public bodies, corporate and politic, with the power to sue and be sued, accept and issue deeds in their name, and to institute quia timet actions. Submitted as: Georgia SB 143 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Land Bank Authority Act.

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Section 2. [Definitions.] As used in this Act: Agreement means: (1) An interlocal cooperation agreement entered into by the parties pursuant to this Act; or (2) A resolution of a consolidated government establishing an authority pursuant to this Act. Authority means the land bank authority established pursuant to this Act. Parties means the parties to the agreement, which shall include one or more cities and the county containing such cities, or a consolidated government which has adopted a resolution establishing an authority. Property means real property, including any improvements thereon. Tax-delinquent property means any property on which the taxes levied and assessed by any party remain in whole or in part unpaid on the date due and payable.

1 2

Section 3. [Land Bank Authority; Creation, Powers and Duties] (a) One or more cities and the county containing such cities may enter

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into an interlocal cooperation agreement, or a consolidated government may adopt a resolution, for the purpose of establishing a land bank authority pursuant to this Act. (b) The authority shall be a public body corporate and politic with the power to sue and be sued, to accept and issue deeds in its name, and to institute quia timet actions and shall have any other powers necessary and incidental to carry out the powers granted by this Act. (c) The authority shall be established to acquire the tax delinquent properties of the parties in order to foster the public purpose of returning land which is in a non-revenue-generating, non-tax-producing status to an effective utilization status in order to provide housing, new industry, and jobs for the citizens of the county. The authority shall have the powers provided in this Article and those necessary and incidental to the exercise of such powers. (d) Any authority established pursuant to this Act may be dissolved by any party to the agreement or by resolution of a consolidated government or, where multiple cities are involved, any city may withdraw from the agreement which established the authority, or such authority may be dissolved by local Act of the [General Assembly.] (e) An authority whose parties form a consolidated government after entering into an interlocal cooperation agreement shall thereafter operate under and be governed by the provisions of this Act applicable to authorities of consolidated governments as if created by resolution of a consolidated government. The board governing such an authority shall be reconstituted by resolution of the consolidated governments in conformity with the provisions of subsection (a) of Section 4 of this Act prior to the first meeting of such board subsequent to the effective date of consolidation of the party governments.

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Section 4. [Administration and Staff.] (a) The authority shall be governed by a board composed in such a manner as to provide [two (2)] members to represent each party: [two (2)] appointed by the mayor of each party city and [two (2)] appointed by the county commission of the party county. An authority established by resolution of a consolidated government shall be governed by a board composed of [four (4)] members to be appointed by the governing authority of the consolidated government. Each member shall serve at the pleasure of the respective appointing authority for a term of [four (4)] years and shall serve without compensation. The members shall be residents of the county and may be employees of the parties. Any vacancy shall be filled for the remainder of the unexpired term in the same manner as the original appointment. (b) The board of the authority shall meet from time to time as required, and the presence of either [three (3)] members, if there are only [two (2)] parties to the agreement or if the authority was created by a consolidated Suggested State Legislation - 149

Land Bank Authorities 16 17 18 19 20 21 22 23 24 25

government or [fifty (50)] percent of the members then in office, if there are more than [two (2)] parties to the agreement, shall constitute a quorum. Approval by a majority of the membership then in office shall be necessary for any action to be taken by the authority. All meetings shall be open to the public, except as otherwise provided by state law, and a written record shall be maintained of all meetings. A chairperson shall be elected from among the members, and he or she shall execute all deeds, leases, and contracts of the authority when authorized by the board. (c) The authority may employ its own staff or may utilize employees of the parties, as determined by the agreement.

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Section 5. [Property Acquisition and Disposal.] (a) The authority shall hold in its own name, for the benefit of the parties, all properties conveyed to it by the parties, all tax-delinquent properties acquired by it pursuant to this Act, and all properties otherwise acquired. (b) It shall be the duty of the authority to administer the properties acquired by it as follows: (1) All property acquired by the authority shall be inventoried and appraised, and the inventory shall be maintained as a public record; (2) The authority shall organize and classify the property on the basis of suitability for use; (3) The authority shall maintain all property held by it in accordance with applicable laws and codes; and (4) The authority shall have the power to manage, maintain, protect, rent, lease, repair, insure, alter, sell, trade, exchange, or otherwise dispose of any property on terms and conditions determined in the sole discretion of the authority. The authority may assemble tracts or parcels of property for public parks or other public purposes and to that end may exchange parcels and otherwise effectuate the purposes determined by agreement with any party. (c) The acquisition and disposal of property by the authority shall not be governed or controlled by any regulations or laws of the parties unless specifically provided in the agreement, and transfers of property by parties to the authority shall be treated as transfers to a body politic as contemplated by [insert citation.] (d) Property held by the authority may be sold, traded, exchanged, or otherwise disposed of by the authority so long as the disposition is approved by a majority of the membership, as required in subsection (b) of Section 4 of this Act, for any action by the authority, and approved as follows: (1) If the property is located within a party city and the party county, approved by both authority members appointed by the mayor of such city and one of the authority members appointed by the county commission; (2) If the property is located within the county party but outside all

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the party cities, approved by both authority members appointed by the county commission; (3) If the property is located within a party city but outside the party county, approved by both authority members of such city; or (4) If the property is located within the boundaries of a consolidated government, approved by a majority of the authority members.

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Section 6. [Taxes.] (a) If any party obtains a judgment for taxes against a tax-delinquent property within the party county, any of the party cities, or the boundaries of the consolidated government and, the property is ordered sold at a tax sale to satisfy the judgment, the authority may tender one bid at such sale, and such bid shall comprise the authorityÂ&#x2019;s commitment to pay not more than all costs of the sale and its assumption of liability for all taxes, accrued interest thereon, and penalties, and, if there is no other bid, the tax commissioner shall accept the authorityÂ&#x2019;s bid and make a deed of the property to the authority. (b) In accordance with the provisions of [insert citation,] the authority shall have the right to foreclose the right to redeem property at any time after the [twelve (12)] month redemption period has expired pursuant to Section 7 of this Act. Notwithstanding the foregoing provisions of this subsection, the right of redemption shall automatically terminate and expire upon failure to redeem in accordance with [insert citation] where the tax sale was conducted pursuant to [insert citation.] (c) When a property is acquired by the authority, the authority shall have the power to extinguish all county and city or consolidated government taxes, including school district taxes, at the time it sells or otherwise disposes of property; provided, however, that, with respect to school district taxes, the authority shall first obtain the consent of the board of education governing the school district in which the property is located. In determining whether or not to extinguish taxes, the authority shall consider the public benefit to be gained by tax forgiveness with primary consideration given to purchasers who intend to build or rehabilitate low-income housing. The decision by the authority to extinguish taxes is subject to the vote requirements for dispositions of property under subsection (d) of Section 5 of this Act. (d) At the time that the authority sells or otherwise disposes of property as part of its land bank program, the proceeds from the sale, if any, shall be allocated as determined by the authority among the following priorities: (1) furtherance of authority operations; (2) recovery of authority expenses; and (3) distribution to the parties and the appropriate school district in proportion to and to the extent of their respective tax bills and costs. Any excess proceeds shall be distributed pursuant to the agreement of the parSuggested State Legislation - 151

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ties or by resolution of the consolidated government in accordance with the public policy stated in this Act. (e) The authority shall have full discretion in determining the sale price of the property. The agreement of the parties shall provide for a distribution of property that favors neighborhood nonprofit entities obtaining the land for low-income housing and, secondarily, other entities intending to produce low-income or moderate-income housing.

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Section 7. [Foreclosure.] The authority may foreclose the right of redemption to the property conveyed to the authority pursuant to a tax sale conducted in accordance with [insert citation] in the following manner: (1) The record title to the property shall be examined and a certificate of title shall be prepared for the benefit of the authority; (2) The authority shall serve the prior owner whose interest was foreclosed upon and all persons having record title or interest in or lien upon the property with a notice of foreclosure of this right to redeem in conformance with [insert citation;] (3) In the event persons entitled to service are located outside the county, they may be served by certified mail; or (4) In the event the sheriff is unable to perfect service or certified mail attempts are returned unclaimed, the authority shall conduct a search for the person with an interest in the property conveyed to the authority, which search must, at a minimum, have included the following: (A) An examination of the addresses given on the face of the instrument vesting interest or the addresses given to the clerk of the superior court by the transfer tax declaration form. The clerk of the superior court and the tax assessor of the county are required to share information contained in the transfer tax declaration form with one another in a timely manner; (B) A search of the current telephone directory for the county in which the property is located; (C) A letter of inquiry to the person who sold the property to the defendant in the tax sale at the address shown in the transfer tax declaration form or in the telephone directory; (D) A letter of inquiry to the attorney handling the closing prior to the tax sale if provided on the deed forms; (E) A sign being no less than [four (4)] feet by [six (6)] feet shall be erected on the property and maintained by the authority for a minimum of [thirty (30)] days reading as follows: Â&#x2018;THIS PROPERTY HAS BEEN CONVEYED TO THE ____________________ LAND BANK AUTHORITY BY VIRTUE OF A SALE FOR UNPAID TAXES. PERSONS WITH INFORMATION RE-

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GARDING THE PRIOR OWNER OF THE PROPERTY ARE REQUESTED TO CALL _________________.Â&#x2019;; and (F) If the authority has made the search as required by this paragraph and been unable to locate those persons required to be served under paragraph (2) of this section or, having located additional addresses of those persons through such search, attempted without success to serve those persons in either manner provided by paragraph (2) or (3) of this section, the authority shall make a written summary of the attempts made to serve the notice, in recordable form, and may authorize the foreclosure of the redemption rights of record.Â&#x201D;

Section 8. [Severability.] [Insert severability clause.]

Section 9. [Repealer.] [Insert repealer clause.]

Section 10. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 153

Lead Exposure This Act establishes voluntary standards to reduce the risk of exposure to lead in residences that were built before 1978. Owners who bring their buildings into compliance with these standards also limit their liability in lawsuits over lead exposure to occupants of their buildings. Submitted as: North Carolina SB 806, engrossed version. Readers should note that the SSL committee reviewed SB 806, but the legislation highlighted in this volume is actually based on language that was enacted as part of Chapter 443 of the 1997 North Carolina Session Laws. That chapter contains the same language as SB 806. The committee substituted the applicable language of Chapter 443 for SB 806 in this Suggested State Legislation volume because SB 806 did not pass the Legislature.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Childhood Lead Exposure Act.

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Section 2. [Definitions.] As used in this Act: (1) Abatement means identifying lead-based paint, identifying or assessing a lead-based paint hazard, or undertaking any of the following measures to eliminate a lead-based paint hazard: (i) Removing lead-based paint from a surface and repainting the surface. (ii) Removing a component, such as a windowsill, painted with leadbased paint and replacing the component. (iii) Enclosing a surface painted with lead-based paint with paneling, vinyl siding, or another approved material. (iv) Encapsulating a surface painted with lead-based paint with a sealant. (v) Any other measure approved by the [Commission.] The term includes an inspection and a risk assessment. (2) Confirmed lead poisoning means a blood lead concentration of [twenty (20)] micrograms per deciliter or greater determined by the lower of [two (2)] consecutive blood tests within a [six (6)] month period.

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(3) Child-occupied facility means a building, or portion of a building, constructed prior to 1978, regularly visited by a child who is less than [six (6)] years of age. Child-occupied facilities may include, but are not limited to, child care facilities, preschools, nurseries, kindergarten classrooms, schools, clinics, or treatment centers including the common areas, the grounds, any outbuildings, or other structures appurtenant to the facility. (4) Department means the [Department of Environment, Health, and Natural Resources] or its authorized agent. (5) Elevated blood lead level means a blood lead concentration of [ten (10)] micrograms per deciliter or greater determined by the lower of [two (2)] consecutive blood tests within a [six (6)] month period. (6) Lead-based paint hazard means a condition that is likely to cause adverse health effects as a result of exposure to lead-based paint or to soil or dust that contains lead derived from lead-based paint. (7) Lead poisoning hazard means the presence of readily accessible or mouthable lead-bearing substances, including lead-based paint, measuring [one (1.0)] milligram per square centimeter or greater by X-ray fluorescence or [one-half of one (0.5)] percent or greater by chemical analysis; or [fifteen (15)] parts per billion or greater in drinking water; or [one hundred (100)] micrograms per square foot or greater for dust on floors; or [five hundred (500)] micrograms per square foot or greater for dust on windowsills; or [eight hundred (800)] micrograms per square foot or greater for dust in window troughs, or soil lead concentrations in an amount greater than or equal to [four hundred (400)] parts per million that is determined by the [Department] to present a hazard in light of the condition and use of the land and other relevant factors. (8) Lead-safe housing is housing that was built since 1978 or has been tested by a person that has been certified to perform risk assessments and found to have no lead-based paint hazards within the meaning of the Residential Lead-Based Paint Reduction Act of 1992, 42 U.S.C. ß 4851b(15). (9) Managing agent means any person who has charge, care, or control of a building or part thereof in which dwelling units or rooming units are leased. (10) Maintenance standard means the following: (i) Using safe work practices, repairing and repainting areas of deteriorated paint inside a residential housing unit and for single-family and duplex residential dwellings built prior to 1950, repairing and repainting areas of deteriorated paint on interior and exterior surfaces; (ii) Cleaning the interior of the unit to remove dust that constitutes a lead poisoning hazard; (iii) Adjusting doors and windows to minimize friction or impact on surfaces; (iv) Subject to the occupant s approval, appropriately cleaning any carpets; Suggested State Legislation - 155

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(v) Taking such steps as are necessary to ensure that all interior surfaces on which dust might collect are readily cleanable; and (vi) Providing the occupant or occupants all information required to be provided under the Residential Lead-Based Paint Hazard Reduction Act of 1992, and amendments thereto. (11) Mouthable lead-bearing substance means any substance on surfaces or fixtures five feet or less from the floor or ground that form a protruding corner or similar edge, or protrude one-half inch or more from a flat wall surface, or are freestanding, containing lead-contaminated dust at a level that constitutes a lead poisoning hazard. Mouthable surfaces or fixtures include toys, vinyl miniblinds, doors, door jambs, stairs, stair rails, windows, windowsills, and baseboards. (12) Persistent elevated blood lead level means a blood lead concentration of [fifteen to nineteen (15-19)] micrograms per deciliter determined by the lowest of [three (3)] consecutive blood tests. The first [two (2)] blood tests shall be performed within a [six (6)] month period, and the [third (3)] blood test shall be performed at least [twelve (12)] weeks and not more than [six (6)] months after the [second (2)] blood test. (13) Readily accessible lead-bearing substance means any substance containing lead at a level that constitutes a lead poisoning hazard which can be ingested or inhaled by a child under [six (6)] years of age. Readily accessible substances include deteriorated paint that is peeling, chipping, cracking, flaking, or blistering to the extent that the paint has separated from the substrate. Readily accessible substances also include soil, water, and paint that is chalking. (14) Regularly visits means the presence at a residential housing unit or child-occupied facility on at least [two (2)] different days within any week, provided that each day s visit lasts at least [three (3)] hours and the combined weekly visits last at least [six (6)] hours, and the combined annual visits last at least [sixty (60)] hours. (15) Remediation means the elimination or control of lead poisoning hazards by methods approved by the [Department.] (16) Residential housing unit means a dwelling, dwelling unit, or other structure, all or part of which is designed or used for human habitation, including the common areas, the grounds, any outbuildings, or other structures appurtenant to the residential housing unit. (17) Supplemental address means a residential housing unit or childoccupied facility where a child with a persistent elevated blood lead level or a confirmed lead poisoning regularly visits or attends. Supplemental address also means a residential housing unit or child-occupied facility where a child resided, regularly visited, or attended within the six months immediately preceding the determination of a persistent elevated blood lead level or a confirmed lead poisoning.

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Section 3. [Reports of Blood Levels in Children.] All laboratories doing business in this state shall report to the [Department] blood lead levels of [one (1)] microgram per deciliter or greater for children less than [six (6)] years of age and for individuals whose ages are unknown at the time of testing. Reports shall be made within [five (5)] working days after test completion on forms provided by the [Department] or on self-generated forms containing: the child s full name, date of birth, sex, race, address, and Medicaid number, if any; the name, address, and telephone number of the requesting health care provider; the name, address, and telephone number of the testing laboratory; the laboratory results, the specimen type venous or capillary; the laboratory sample number, and the dates the sample was collected and analyzed. Such reports may be made by electronic submissions.

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Section 4. [Examination and Testing.] When the [Department] has a reasonable suspicion that a child less than [six (6)] years of age has a persistent elevated blood lead level or a confirmed lead poisoning, the [Department] may require that child to be examined and tested within [thirty (30)] days. The [Department] shall require from the owner, managing agent, or tenant of the residential housing unit or child-occupied facility information on each child who resides in, regularly visits, or attends, or, who has within the past [six (6)] months, resided in, regularly visited, or attended the unit or facility. The information required shall include each child s name and date of birth, the names and addresses of each child s parents, legal guardian, or full-time custodian. The owner, managing agent, or tenant shall submit the required information within [ten (10)] days of receipt of the request from the [Department.]

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Section 5. [Investigation to Identify Lead Poisoning Hazards.] (a) When the [Department] learns of a persistent elevated blood lead level or a confirmed lead poisoning, the [Department] shall conduct an investigation to identify the lead poisoning hazards to children. The [Department] shall investigate the residential housing unit or child-occupied facility where the child with the persistent elevated blood lead level or the confirmed lead poisoning resides, regularly visits, or attends. The [Department] shall also investigate the supplemental addresses of the child who has a persistent elevated blood lead level or a confirmed lead poisoning. (b) The [Department] shall also conduct an investigation when it reasonably suspects that a lead poisoning hazard to children exists in a residential housing unit or child-occupied facility occupied, regularly visited, or attended by a child less than [six (6)] years of age. (c) In conducting an investigation, the [Department] may take samples of surface materials, or other materials suspected of containing lead, for analysis and testing. If samples are taken, chemical determination of the Suggested State Legislation - 157

Lead Exposure 17 18

lead content of the samples shall be by atomic absorption spectroscopy or equivalent methods approved by the [Department.]

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Section 6. [Notification.] Upon determination that a lead poisoning hazard exists, the [Department] shall give written notice of the lead poisoning hazard to the owner or managing agent of the residential housing unit or child-occupied facility and to all persons residing in, attending, or regularly visiting the unit or facility. The written notice to the owner or managing agent shall include a list of possible methods of abatement of the lead-based paint hazards and of possible methods of remediation of any other lead poisoning hazard.

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Section 7. [Abatement and Remediation.] (a) Upon determination that a child less than [six (6)] years of age has a confirmed lead poisoning of [twenty (20)] micrograms per deciliter or greater and that child resides in, attends, or regularly visits, a residential housing unit or child-occupied facility containing lead poisoning hazards, the [Department] shall require abatement of the lead-based paint hazards and the remediation of other lead poisoning hazards. The [Department] shall also require the abatement of the lead-based paint hazards and the remediation of other lead poisoning hazards identified at the supplemental addresses of a child less than [six (6)] years of age with a confirmed lead poisoning of [twenty (20)] micrograms per deciliter or greater. (b) When abatement of lead-based paint hazards or remediation of other lead poisoning hazards is required under subsection (a) of this section, the owner or managing agent shall submit a written remediation plan to the [Department] within [fourteen (14)] days of receipt of the lead poisoning hazard notification and shall obtain written approval of the plan prior to initiating abatement of lead-based paint hazards or remediation of other lead poisoning hazards. The remediation plan shall comply with subsections (g), (h), and (i) of this section. (c) If the remediation plan submitted fails to meet the requirements of this section, the [Department] shall issue an order requiring submission of a modified plan. The order shall indicate the modifications which shall be made to the remediation plan and the date by which the plan as modified shall be submitted to the [Department.] (d) If the owner or managing agent does not submit a remediation plan within [fourteen (14)] days, the [Department] shall issue an order requiring submission of a remediation plan within [five (5)] days of receipt of the order. (e) The owner or managing agent shall notify the [Department] and the occupants of the dates of remediation activities at least [three (3)] days prior to the commencement of the activities. (f) Abatement of lead-based paint hazards and remediation of other lead

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poisoning hazards shall be completed within [sixty (60)] days of the [DepartmentÂ&#x2019;s] approval of the remediation plan. If these activities are not completed within [sixty (60)] days as required, the [Department] shall issue an order requiring completion of the activities. An owner or managing agent may apply to the [Department] for an extension of the deadline. The [Department] may issue an order extending the deadline for [thirty (30)] days upon proper written application by the owner or managing agent. (g) The following methods of abatement of lead-based paint hazards are prohibited: (1) Stripping paint on-site with methylene chloride-based solutions; (2) Torch or flame burning; (3) Heating paint with a heat gun above [one-thousand one hundred (1,100)] degrees Fahrenheit; (4) Covering with new paint or wallpaper unless all readily accessible lead-based paint has been removed; (5) Uncontrolled abrasive blasting; or (6) Uncontrolled water blasting. (h) All lead-containing waste and residue shall be removed and disposed of in accordance with applicable federal, state, and local laws and rules. (i) All remediation plans shall require that the lead poisoning hazards be reduced to below the following levels: (1) Floor lead dust levels are less than [one hundred (100)] micrograms per square foot; (2) Windowsill lead dust levels are less than [five hundred (500)] micrograms per square foot; (3) Window trough lead dust levels are less than [eight hundred (800)] micrograms per square foot; (4) Soil lead levels are less than [four hundred (400)] parts per million or such other level higher than [four hundred (400)] parts per million as determined by the [Department] to prevent a hazard in light of the condition and use of the land and in light of other relevant factors; and (5) Drinking water lead levels less than [fifteen (15)] parts per billion. (j) The [Department] shall verify by visual inspection that the approved remediation plan has been completed. The [Department] may also verify plan completion by residual lead dust monitoring and soil or drinking water lead level measurement. Compliance with the maintenance standard shall be deemed equivalent to meeting the remediation plan requirements as long as exterior surfaces are also addressed. (k) Removal of children from the residential housing unit or child-occupied facility shall not constitute abatement or remediation if the property continues to be used for a residential housing unit or child-occupied facility. Suggested State Legislation - 159

Lead Exposure 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Section 8. [Effect of Compliance with Maintenance Standard.] Any owner of a residential housing unit constructed prior to [1978] who is sued by a current or former occupant seeking damages for injuries allegedly arising from exposure to lead-based paint or lead-contaminated dust, shall not be deemed liable: (1) for any injuries sustained by that occupant after the owner first complied with the maintenance standard defined under Section 2 (10) of this Act provided the owner has repeated the steps provided for in the maintenance standard annually and obtained a certificate of compliance under Section 9 annually during such occupancy; or (2) if the owner is able to show by other documentation that compliance with the maintenance standard has been maintained during the period when the injuries were sustained; or (3) if the owner is able to show that the unit was lead-safe housing containing no lead-based paint hazards during the period when the injuries were sustained.

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Section 9. [Effect of Evidence of Compliance.] An owner of a unit who has complied with the maintenance standard may apply annually to the [Department] for a certificate of compliance. Upon presentation of acceptable proof of compliance, the [Department] shall provide to the owner a certificate evidencing compliance. The [Department] may issue a certificate based solely on information provided by the owner and may revoke the certificate upon showing that any of the information is erroneous or inadequate, or upon finding that the unit is no longer in compliance with the maintenance standard.

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Section 10. [Discrimination in Financing.] (a) No bank or financial institution in the business of lending money for the purchase, sale, construction, rehabilitation, improvement, or refinancing of real property or the lending of money secured by an interest in real property may refuse to make such loans merely because of the presence of lead-based paint on the residential real property or in the residential housing unit provided that the owner is in compliance with the maintenance standard and has obtained a certificate of compliance under Section 9 annually. (b) Nothing in this section shall require a financial institution to extend a loan or otherwise provide financial assistance if it is clearly evident that health-related issues, other than those related to lead-based paint, make occupancy of the housing accommodation an imminent threat to the health or safety of the occupant, or be construed to preclude a financial institution from considering the fair market value of the property which will secure the proposed loan. (c) Failure to meet the maintenance standard shall not be deemed a

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Lead Exposure 18

default under existing mortgages.

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Section 11. [Resident Responsibilities.] In any residential housing unit occupied by a child less than [six (6)] years old who has an elevated blood lead level of [ten (10)] micrograms per deciliter or greater, the [Department] shall advise, in writing, the owner or managing agent and the childÂ&#x2019;s parents or legal guardian as to the importance of carrying out routine cleaning activities in the units they occupy, own, or manage. Such cleaning activities shall include: (1) Wiping clean all windowsills with a damp cloth or sponge at least weekly; (2) Regularly washing all surfaces accessible to children; (3) In the case of a leased residential housing unit, identifying any deteriorated paint in the unit and notifying the owner or managing agent of such conditions within [seventy-two (72)] hours of discovery; and (4) Identifying and understanding potential lead poisoning hazards in the environment of each child under the age of [six (6)] in the unit (including toys, vinyl miniblinds, playground equipment, drinking water, soil, and painted surfaces), and taking steps to prevent children from ingesting lead such as encouraging children to wash their faces and hands frequently and especially after playing outdoors.Â&#x201D;

1 2

Section 12. [Rules.] The [Commission for Health Services] shall adopt rules to implement this Act.

Section 13. [Severability.] [Insert severability clause.]

Section 14. [Repealer.] [Insert repealer clause.]

Section 15. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 161

Limited-Service Rural Hospitals Legislation from Utah that addresses access to health care in rural communities is highlighted in a Health Note in the 1998 Suggested State Legislation volume. That legislation, Utah HB 216, mandates that Health Maintenance Organization (HMO) members who live in communities with less than 100 people per square mile can visit local doctors who are not covered by their HMO plans when the members would have to travel more than 30 miles to see a doctor who is covered by their HMO plan. This Act establishes limited-service rural hospitals. Limited-service rural hospitals: Are facilities which provide 24-hour emergency services; Provide inpatient care for a period not exceeding 96 hours; Are located within 20 miles of another, full-service hospital; and Are limited to 15 acute care beds. Submitted as: Nebraska LB 837 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Limited Service Rural Hospitals Act.

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Section 2. [Legislative Findings.] The legislature finds and declares for the purposes of limited-service rural hospitals as defined in subdivision (24) of section 4 of this Act: (1) [One-half (1/2)] of the state population, or about [eight hundred thousand (800,000)] people, reside in rural areas, and maintaining access to health care services continues to be a struggle for such rural residents who must overcome geographic barriers, limited capital resources, and the difficulty of recruiting and retaining physicians and other health care professionals; (2) Rural areas have a larger proportion of elderly residents; (3) Nationally, inadequate Medicare reimbursement and burdensome and inflexible requirements have contributed to a high closure rate among rural hospitals, resulting in reduced access to primary care and emergency services for millions of rural residents; (4) Over the past [seven (7)] years, the federal government has sup-

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ported the development of limited-service rural hospitals in several states to provide an alternative for rural communities that can no longer support a traditional hospital in remote or sparsely populated areas; and (5) The purpose of the creation of limited-service rural hospitals is to (a) ensure access to health care services for rural communities by allowing hospitals to be designated as limited-service rural hospitals if such hospitals limit the scope of available inpatient acute care services, (b) provide more appropriate and flexible staffing and licensure standards, (c) enhance the financial security of limited-service rural hospitals by reimbursing such facilities on a reasonable cost basis, and (d) promote linkages between limited-service rural hospitals licensed by the state and broader programs supporting the development of and transition to integrated provider networks.

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Section 3. [Standards.] In addition to the authority of the [Department of Health and Human Services Regulation and Licensure] pursuant to section 5 of this Act, the [department] is hereby authorized to adopt and promulgate rules, regulations, and standards with respect to limited-service rural hospitals as defined in subdivision (24) of section 4 of this Act. Such rules, regulations, and standards shall include, but not be limited to: (1) Minimum staffing requirements regarding the number of hours during a day or days during a week in which a facility must be open and fully staffed when no inpatient is present; (2) Minimum standards for the governing board, medical staff, nursing services, and quality assurance program of a limited-service rural hospital; and (3) Minimum standards for the scope of services provided by such hospital, including inpatient medical care which shall be subject to length of stay limits, emergency medical care, diagnostic and therapeutic services, and laboratory, radiology, surgery, and anesthesia services.

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Section 4. [Definitions.] For purposes of this Act, unless the context otherwise requires: (1) Care shall mean the exercise of concern or responsibility for the comfort and welfare of the residents of a facility by the owner, occupant, administrator, or operator of the facility in addition to the provision of food and shelter to the residents and shall include, but not be limited to, the maintenance of a minimum amount of supervision of the activities of the residents of the facility as well as the provision of a minimum amount of assistance to the residents and shall also include personal care, hereby defined as the provision of health-related services for people who are in need of a protective environment but who are otherwise able to manage the normal activities of daily living; (2) Hospital shall mean (a) any institution, facility, place, or building which is devoted primarily to the maintenance and operation of faciliSuggested State Legislation - 163

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ties for the diagnosis, treatment, or medical care over a period exceeding [twenty-four (24)] consecutive hours of [two (2)] or more unrelated people suffering from illness, condition, injury, or deformity, (b) any institution, facility, place, or building which is devoted primarily to the rendering over a period exceeding [twenty-four (24)] consecutive hours of obstetrical or other medical care for [two (2)] or more unrelated people, or (c) any institution, facility, place, or building in which any accommodation is primarily maintained, furnished, or offered for the medical and nursing care over a period exceeding [twenty-four (24)] consecutive hours of [two (2)] or more unrelated aged or infirm persons requiring or receiving convalescent care. Hospital shall include, but not be limited to, facilities or parts of facilities which provide space for general acute hospitals, short-term hospitals, rehabilitation hospitals, long-term care hospitals, limited-service rural hospitals, psychiatric or mental hospitals, and emergency hospitals or treatment centers. Hospital shall not be construed to include the residence, office, or clinic of a private physician or of an association of physicians, any other health practitioner, or any practitioner or association of practitioners licensed pursuant to [insert citation,] in which residence, office, or clinic patients are not treated or given care for a period in excess of [twenty-four (24)] consecutive hours; (3) General acute hospital shall mean a hospital having a duly constituted governing body which exercises administrative and professional responsibility and an organized medical staff which provides inpatient care, including medical, nursing, surgical, anesthesia, laboratory, diagnostic radiology, pharmacy, and dietary services. Such services may be provided through a contract or agreement; (4) Short-term hospital shall mean a hospital that (a) is primarily devoted to the diagnosis and treatment of people requiring short-term treatment or treatment of diagnosis consistent with the medical support available and (b) has written coordination agreements with a general acute hospital for transfers and quality assurance programs. Short-term hospital shall not mean a facility for the treatment of mental diseases, a rehabilitation hospital, or a substance abuse treatment center; (5) Rehabilitation hospital shall mean a hospital which is operated for the primary purpose of assisting in the rehabilitation of disabled persons through an integrated program of medical and other services provided under professional supervision; (6) Long-term care hospital shall mean any hospital, any distinct part of any hospital, or any portion of a hospital which is primarily devoted to providing the care and services as set forth in subdivisions (10), (11), and (21) of this section; (7) Psychiatric or mental hospital shall mean a hospital which is primarily engaged in providing to inpatients, by or under the supervision of a physician, psychiatric services for the diagnosis and treatment of men-

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tally ill persons; (8) Emergency hospital or treatment center shall mean a hospital primarily devoted to the diagnosis and treatment of people requiring emergency outpatient services and emergency care and with written coordination agreements with a general acute hospital for transfers and quality assurance programs; (9) Health clinic shall mean an institution, a facility, a place, a building, or any distinct part of an institution, a facility, a place, or a building, not licensed as a hospital, in which advice, counseling, diagnosis, treatment, surgery, care, or services relating to the preservation or maintenance of health are provided on an outpatient basis and for a period not exceeding [twenty-four (24)] consecutive hours primarily or exclusively to persons not residing or confined in such institution, facility, place, building, or distinct part of such institution, facility, place, or building. Health clinic shall include, but not be limited to, an ambulatory surgical center. Satellite clinics operated on an intermittent basis at a specific location or site and providing services within a portion of the total geographic area served by a licensed health clinic need not be separately licensed but may be operated as a part of a parent clinic and share administration and services. Health clinic shall not include the residence, office, clinic, or any distinct part of the residence, office, or clinic of a private physician or association of physicians, any other health practitioner or association of practitioners, or any practitioner licensed pursuant to [insert citation] unless such residence, office, clinic, or distinct part of the residence, office, or clinic is an ambulatory surgical center or unless [ten (10] or more abortions, as defined in [insert citation,] are performed during any [one (1)] calendar week in such residence, office, clinic, or distinct part of the residence, office, or clinic. Health clinic shall not include an institution, a facility, a place, a building, or any distinct part of an institution, a facility, a place, or a building which provides only routine health screenings, health education, or immunizations. For purposes of this subdivision, routine health screenings shall mean the collection of health data through the administration of a screening tool designed for a specific health problem, evaluation and comparison of results to referral criteria, and referral to appropriate sources for care, if indicated, and screening tool shall mean a simple interview or testing procedure to collect basic information on health status; (10) Skilled nursing facility shall mean any institution, facility, place, or building or a distinct part of any institution, facility, place, or building which is primarily devoted to providing to inpatients skilled nursing care and related services for patients who require medical or nursing care or rehabilitation of injured, disabled, or sick persons. Unless a waiver is granted pursuant to [insert citation,] a skilled nursing facility shall use the services of (a) a licensed registered nurse for at least [eight (8)] consecutive hours per day, [seven (7)] days per week and (b) a licensed registered nurse or Suggested State Legislation - 165

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licensed practical nurse on a [twenty-four (24)] hour basis [seven (7)] days per week. Except when waived under [insert citation,] a skilled nursing facility shall designate a licensed registered nurse or licensed practical nurse to serve as a charge nurse on each tour of duty. The director of nursing services shall be a licensed registered nurse, and this requirement shall not be waived. The director of nursing services may serve as a charge nurse only when the skilled nursing facility has an average daily occupancy of [sixty (60)] or fewer residents; (11) Intermediate care facility shall mean any institution, facility, place, or building in which accommodation and board for a period exceeding [twenty-four (24)] consecutive hours and also nursing care and related medical services are provided for [two (2)] or more unrelated people who are ill, injured, or disabled but not in need of hospital or skilled nursing facility care, but who by reason of illness, disease, injury, deformity, disability, convalescence, or physical or mental infirmity require such nursing care and related medical services. An intermediate care facility shall provide at least [one (1)] licensed registered nurse or licensed practical nurse on duty on the day shift [seven (7)] days per week and at least [one (1)] licensed registered nurse, licensed practical nurse, or care staff member on duty on the other [two (2)] shifts [seven (7)] days per week. An intermediate care facility shall provide a director of nursing services, who shall be a licensed registered nurse, to administer, supervise, delegate, and evaluate nursing and nursing support services of the facility. The director of nursing services shall serve on the day shift [five (5)] days per week, [eight (8)] hours per day, except when it is necessary to vary working hours to provide supervision on other shifts, and may satisfy the day-shift nurse requirement for [five (5)] of [seven (7)] days per week if he or she can meet both the nursing care needs of the patients or residents for that shift and his or her administrative and supervisory responsibilities as director of nursing services; (12) Intermediate care facility for the mentally retarded shall mean any institution, facility, place, or building, not licensed as a hospital, that provides accommodation, board, training or habilitation services, advice, counseling, diagnosis, treatment, and care, including nursing care and related medical services, for a period exceeding [twenty-four (24)] consecutive hours for [fifteen (15)] unrelated people who have mental retardation or related conditions, including epilepsy, cerebral palsy, or other developmental disabilities. The requirement of [fifteen (15)] or more unrelated people shall not apply to any intermediate care facility for the mentally retarded which has a valid license as of [January 1, 1988;] (13) Residential care facility shall mean any institution, facility, place, or building in which there are provided for a period exceeding [twenty-four (24)] consecutive hours accommodation, board, and care, such as personal assistance in feeding, dressing, and other essential daily living activities, to [four (4)] or more unrelated people who by reason of illness, disease, injury,

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deformity, disability, or physical or mental infirmity are unable to sufficiently or properly care for themselves or manage their own affairs but do not require the daily services of a licensed registered nurse or licensed practical nurse; (14) Domiciliary facility shall mean any institution, facility, place, or building in which there are provided for a period exceeding [twenty-four (24)] consecutive hours accommodation and supervision to four or more people, not related to the owner, occupant, manager, or administrator thereof, who are essentially capable of managing their own affairs but who are in need of supervision, including supervision of nutrition, by the institution, facility, place, or building on a regular, continuing basis but not necessarily on a consecutive [twenty-four (24)] hour basis. This definition shall not include those homes or facilities providing casual care at irregular intervals; (15) Mental health center shall mean any institution, facility, place, or building, not licensed as a hospital, which is used to provide for a period exceeding [twenty-four (24)] consecutive hours accommodation, board, and advice, counseling, diagnosis, treatment, care, or services primarily or exclusively to persons residing or confined in the institution, facility, place, or building who are afflicted with a mental disease, disorder, or disability; (16) Center for the developmentally disabled shall mean any residential institution, facility, place, or building, not licensed as a hospital, which is used to provide accommodation, board, and training, advice, counseling, diagnosis, treatment, care, including medical care when appropriate, or services primarily or exclusively to four or more persons residing in the institution, facility, place, or building who have developmental disabilities; (17) Substance abuse treatment center shall mean any institution, facility, place, or building, not licensed as a hospital, including any private dwelling, which is used to provide residential care, treatment, services, maintenance, accommodation, or board in a group setting primarily or exclusively for people who are substance abusers. Substance abuse treatment center shall include those settings which provide programs and services on an outpatient basis primarily or exclusively to people who are substance abusers but not services that can be rendered only by a physician or within the confines of a hospital. Specific types or categories of substance abuse treatment centers may be further defined by appropriate rule and regulation of the department not inconsistent with this definition. For purposes of this subdivision, substance abuse shall mean the abuse of substances which have significant mood-changing or perception-changing capacities, which are likely to be physiologically or psychologically addictive, and the continued use of which may result in negative social consequences, and abuse shall mean the use of substances in ways that have or are likely to have significant adverse social consequences; (18) Home health agency shall mean a public agency, private organization, or subdivision of such an agency or organization which is primarily Suggested State Legislation - 167

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engaged in providing skilled nursing care or a minimum of one other therapeutic service as defined by the department on a full-time, part-time, or intermittent basis to patients in a place of temporary or permanent residence used as the patientÂ&#x2019;s home under a plan of care as prescribed by the attending physician and which meets the rules, regulations, and standards as established by the [department.] Nothing in this subdivision shall be construed to require (a) a physicianÂ&#x2019;s plan of care, (b) a summary report to the physician, (c) a progress report, or (d) a discharge summary when only personal care or assistance with the activities of daily living, as such terms are defined in [insert citation] are provided. Parent home health agency shall mean the primary home health agency which establishes, maintains, and assures administrative and supervisory control of branch offices and subunits. Branch office shall mean a home health agency which is at a location or site providing services within a portion of the total geographic area served by the parent agency and is in sufficient proximity to share administration, supervision, and services with its parent agency in a manner that renders it unnecessary for the branch independently to meet licensure requirements. A branch office shall be part of its parent home health agency and share administration and services. Subunit shall mean a home health agency which serves patients in a geographic area different from that of the parent agency and which, by virtue of the distance between it and the parent agency, is judged incapable of sharing administration, supervision, and services on a daily basis and shall independently meet the licensing requirements for home health agencies. Home health agency shall not include private duty nursing registries as long as the private duty nursing registrant is the direct payee from the patient. Home health agency shall not apply to the practice of home health care by other licensed medical persons as authorized by the practice of their particular specialty nor to the people providing homemaker or chore services within the home; (19) Developmental disability shall mean a severe, chronic disability of a person which (a) is attributable to a mental or physical impairment or combination of mental and physical impairment, (b) is manifested before the person attains age [twenty-two (22),] (c) is likely to continue indefinitely, (d) results in substantial functional limitations in three or more of the following areas of major life activity: self-care; receptive and expressive language; learning; mobility; self-direction; capacity for independent living; and economic self-sufficiency, and (e) reflects the personÂ&#x2019;s need for a combination and sequence of special interdisciplinary or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated; (20) Qualified mental retardation professional shall mean any person who meets the requirements of 42 C.F.R. 483.430(a); (21) Nursing facility shall mean any institution, facility, place, or building or a distinct part of any institution, facility, place, or building which is

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primarily devoted to providing to inpatients nursing care and related services for patients who require medical or nursing care or rehabilitation of injured, disabled, or sick persons. Unless a waiver is granted pursuant to [insert citation,] a nursing facility shall use the services of (a) a licensed registered nurse for at least [eight (8)] consecutive hours per day, [seven (7)] days per week and (b) a licensed registered nurse or licensed practical nurse on a [twenty-four (24)] hour basis [seven (7)] days per week. Except when waived under [insert citation,] a nursing facility shall designate a licensed registered nurse or licensed practical nurse to serve as a charge nurse on each tour of duty. The director of nursing services shall be a licensed registered nurse, and this requirement shall not be waived. The director of nursing services may serve as a charge nurse only when the nursing facility has an average daily occupancy of [sixty (60] or fewer residents; (22) Department shall mean the [Department of Health and Human Services Regulation and Licensure;] and (23) Ambulatory surgical center shall mean any facility, not licensed as a hospital, (a) the primary purpose of which is to provide surgical services to patients not requiring hospitalization, in which the patient is admitted to and discharged from such facility within the same working day and is not permitted to stay overnight, (b) which meets all state licensure requirements of a health clinic pursuant to subdivision (9) of this section, and 13 (c) which has qualified for a written agreement with the [Health Care Finance Administration] of the [United States Department of Health and Human Services] or its successor to participate in Medicare as an ambulatory surgical center as defined in 42 C.F.R 17 416 et seq. or which receives other third-party reimbursement for facility services. Ambulatory surgical center shall not include an office or clinic used solely by a practitioner or group of practitioners in the practice of medicine, dentistry, or podiatry; and (24) Limited-service rural hospital shall mean a facility which (a) provides inpatient care to ill or injured persons prior to their transportation to a hospital or provides inpatient medical care to persons needing such care for a period of no longer than [ninety-six (96)] hours, (b) is located no less than [twenty (20)] road miles from the nearest hospital, (c) may have up to [fifteen (15)] acute care inpatient beds and can participate in the swing-bed program, (d) makes available emergency services on a [twenty-four (24)] hour basis, and (e) is required to have formal agreements with at least [one (1)] hospital and other appropriate providers for such services as patient referral and transfer, communications systems, provision of emergency and nonemergency transportation, and backup medical and emergency services.

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Section 5. [Rules and Regulations.] To protect the health, safety, and welfare of the public and to ensure to the greatest extent possible the effiSuggested State Legislation - 169

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cient, adequate, and safe practice of health care in any hospital or related institution as defined in this Act, the [Uniform Controlled Substances Act,] the [Uniform Licensing Law,] and in [insert citation,] the [department] shall adopt, promulgate, and enforce rules, regulations, and standards with respect to the different types of hospitals and related institutions except nursing homes to be licensed hereunder as may be designed to further the accomplishment of the purposes of this Act. Such rules, regulations, and standards shall be modified, amended, or rescinded from time to time in the public interest by the [department.] The [department,] with the advice of the [Nursing Home Advisory Council,] shall adopt, promulgate, and enforce rules, regulations, and standards with respect to nursing homes. Such rules, regulations, and standards shall be in compliance with the [insert citation.] Such rules, regulations, and standards shall be modified, amended, or rescinded from time to time in the public interest by the [department] with the advice of the [Nursing Home Advisory Council.]

Section 6. [Severability.] [Insert severability clause.]

Section 7. [Repealer.] [Insert repealer clause.]

Section 8. [Effective Date.] [Insert effective date.]

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Livestock Management Facilities This legislation combines language from Illinois HB 3151, which was enacted into law in 1996, and amendments to HB 3151, which were subsequently enacted in Section 10 of Illinois HB 1547 in 1998. Both the original Act and its amendments respond to a trend in the livestock industry to concentrate increasing numbers of animals at livestock facilities, which in turn generates concerns or complaints about odors from the facility and groundwater contamination. This Act sets requirements for registering, certifying, building, modifying, closing and inspecting earthen livestock waste lagoons. It requires owners/operators of livestock management facilities of a certain size to file a livestock waste management plan with the state Department of Agriculture. Applying livestock waste to the land is acceptable practice in the state. Thus, these plans shall include: Estimates of the volume of waste to be disposed of annually; The number of acres available for disposing livestock waste; Estimates of the nutrient value of the waste; and, Provisions governing where and how the waste is applied. The Act establishes a Certified Livestock Manager program and sets requirements where livestock waste handling facilities must be supervised by a certified livestock manager. It also establishes setbacks for livestock management facilities and livestock waste handling facilities. The Act directs the state agriculture department to fund environmental research projects pertinent to livestock management facilities. The Act also provides that: Earthen livestock waste lagoons must include a secondary berm, filter strip, grass waterway, or terrace or any combination thereof; State inspectors must give owner/operators of earthen livestock waste lagoons a written report of the inspection findings and remedial measures on the day of inspection; The state must inform the affected county government of a notice of intent to build or modify an earthen waste lagoon within seven days after such notice is received by the state; After receiving a notice to build or modify an earthen livestock waste lagoon, county governments have 30 days to call a public informational meeting; Waste lagoon owner/operators must report to the state any release of livestock waste from a lagoon and within 24 hours after the discovery of the release; Such lagoons shall shut down after three violations until the violations are corrected; and The state shall inspect earthen livestock waste lagoons at least once a year on a random basis. Suggested State Legislation - 171

Livestock Management Facilities Submitted as: Illinois HB 3151 (enacted into law, 1996) and Amendments in HB 1547 (enacted into law, 1998).

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as Â&#x201C;The Livestock Management Facilities Act.Â&#x201D;

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Section 2. [Policy.] (a) The [General Assembly] finds the following: (1) Enhancements to the current regulations dealing with livestock production facilities are needed. (2) The livestock industry is experiencing rapid changes as a result of many different occurrences within the industry including increased sophistication of production technology, maintain or expand operations, increased demand for capital to and changing consumer demands for a quality product. (3) The livestock industry represents a major economic activity in the state economy. (4) The trend is for larger concentration of animals at a livestock management facility due to various market forces. (5) Current regulation of the operation and management of livestock production is adequate for todayÂ&#x2019;s industry with a few modifications. (6) Due to the increasing numbers of animals at a livestock management facility, there is a potential for greater impacts on the immediate area. (7) Livestock waste lagoons must be constructed according to standards to maintain structural integrity and to protect groundwater. (8) Since a majority of odor complaints result from manure application, livestock producers must be provided with an educational program that will enhance neighbor awareness and their environmental management skills, with emphasis on management of livestock wastes. (b) Therefore, it is the policy of this state to maintain an economically viable livestock industry in the state while protecting the environment for the benefit of both the livestock producer and persons who live in the vicinity of a livestock production facility.

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Section 3. [Definitions.] In this Act words and phrases have the meanings set forth in the following Sections, unless the context clearly requires

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otherwise: [Agency] means the state [Environmental Protection [Agency].] Animal feeding operation means a feeding operation as defined in [insert citation] and the rules promulgated under that [insert citation] concerning agriculture related pollution. Animal unit means a unit of measurement for any animal feeding operation calculated as follows: (1) Brood cows and slaughter and feeder cattle multiplied by [1.0.] (2) Milking dairy cows multiplied by [1.4.] (3) Young dairy stock multiplied by [0.6.] (4) Swine weighing over [fifty-five (55)] pounds multiplied by [0.4.] (5) Swine weighing under [fifty-five (55)] pounds multiplied by [0.03.] (6) Sheep, lambs, or goats multiplied by [0.1.] (7) Horses multiplied by [2.0.] (8) Turkeys multiplied by [0.02.] (9) Laying hens or broilers multiplied by [0.01] (if the facility has continuous overflow watering). (10) Laying hens or broilers multiplied by [0.03] (if the facility has a liquid manure handling system). (11) Ducks multiplied by [0.02.] Certified livestock manager means a person that has been duly certified by the [Department] as an operator of a livestock waste-handling facility. Department means the state [Department of Agriculture.] Farm residence means any residence on a farm owned or occupied by the farm owners, operators, tenants, or seasonal or year-round hired workers. For purposes of this definition, a farm is the land, buildings, and machinery used in the commercial production of farm products, and farm products are those plants and animals and their products which are produced or raised for commercial purposes and include but are not limited to forages and sod crops, grains and feed crops, dairy and dairy products, poultry and poultry products, livestock, fruits, vegetables, flowers, seeds, grasses, trees, fish, honey any other plant, animal, or plant or animal with food, feed, fiber, or fur and other similar products, or product which supplies people. Lagoon means any excavated, diked or walled structure or combination of structures designed for biological stabilization and storage of livestock wastes. A lagoon does not include structures such as manufactured slurry storage structures or pits under buildings as defined in rules under the [insert citation] concerning agriculture related pollution. Livestock management facility means any animal feeding operation, livestock shelter, or on-farm milking and accompanying milk-handling area. Two or more livestock management facilities under common ownership, where the facilities are not separated by a minimum distance of [one-quarSuggested State Legislation - 173

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ter (l/4)] mile, and that share a common livestock waste-handling facility shall be considered a single livestock management facility. A livestock management facility at educational institutions, livestock pasture operations, where animals are housed on a temporary basis such as county and state fairs, livestock shows, race tracks and horse breeding and foaling farms, and market holding facilities are not subject to this Act. Livestock waste means livestock excreta and associated feed losses, bedding wash waters, sprinkling waters from livestock cooling, precipitation polluted by falling on or flowing onto an animal feeding operation, and other materials polluted by livestock. Livestock waste-handling facility means individually or collectively those immovable constructions or devices, except sewers used for collecting, pumping, treating or disposing of livestock waste or for the recovery of byproducts from the livestock waste. [Two (2)] or more livestock waste handling facilities under common ownership and where the facilities are not separated by a minimum distance of [one-quarter (1/4)] mile shall be considered a single livestock waste-handling facility. Modified means structural changes to a lagoon that increase its volumetric capacity. New Facility means a livestock management facility or a livestock waste-handling facility the construction or expansion of which is commenced on or after the effective date of this Act. Expanding a facility where the fixed capital cost of the new components constructed within the [two (2)] year period does not exceed [fifty (50)] percent if the fixed capital cost of a comparable entirely new facility shall not be deemed a new facility as used in this Act. Non-farm residence means any residence which is not a farm residence. Owner or Operator means any person who owns, leases, controls or supervises a livestock management facility or livestock waste-handling facility. Person means any individual, partnership, co-partnership, firm, company, corporation, association, joint stock company, trust, estate, political subdivision, state [Agency], or any other legal entity or their legal representative, agent or assigns. Populated Area means any area where at least [ten (10)] inhabited non-farm residences are located or where at least [fifty (50)] people frequent a common place of assembly or a non-farm business at least [one (1)] time per week.

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Section 4. [Livestock Waste Lagoon.] (a) Standards for livestock waste lagoon construction. Any earthen livestock waste lagoon subject to registration shall be constructed or modified in accordance with Design of Anaerobic Lagoons for Animal Waste Man-

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agementÂ&#x201D; promulgated by the American Society of Agricultural Engineers and designated (ASAE EP403.1) or the national guidelines as published by the United States Department of Agriculture Natural Resource Conservation Service in this state and titled Waste Treatment Lagoon. The owner or operator of the earthen livestock lagoon may, with approval from the [Department,] modify or exceed these standards in order to meet site specific objectives. The [Department] shall determine compliance with these requirements. The [Department] may require changes in design or additional requirements to protect groundwater, such as extra liner depth or synthetic liners, when it appears groundwater could be impacted. (b) Registration and certification. Any earthen livestock waste lagoon newly constructed or modified (does not include repairs) after the effective date of rules adopted for the implementation of this Act shall be registered by the owner or operator with the [Department] on a form provided by the [Department]. Lagoons constructed prior to the effective date of rules adopted for the implementation of this Act may register with the [Department] at no charge. In order to give the [Department] notice of the ownerÂ&#x2019;s or operatorÂ&#x2019;s intent to construct or modify an earthen livestock waste lagoon, the owner or operator shall register such lagoon with the [Department] during the preconstruction phase. Construction shall not begin until [thirty (30)] days after submittal of a registration form by certified mail to the [Department]. When an informational, meeting is requested by the county, construction shall not begin until after the informational meeting has been held. Livestock waste lagoon registration forms shall be made available to producers at offices of the [Department of Agriculture, Cooperative Extension Service,] and [Soil and Water Conservation Districts.] Registration information shall include the following: (1) Name(s) and address(es) of the owner and operator who are responsible for the livestock waste lagoon. (2) General location of lagoon. (3) Design construction plans and specifications. (4) Specific location information: (A) Distance to a private or public potable well; (B) Distance to closest occupied private residence (other than any occupied by owner or operator); (C) Distance to nearest stream; and (D) Distance to nearest populated area. (5) Anticipated beginning and ending dates of construction. (6) Type of livestock and number of animal units. The [Department of Agriculture] upon receipt of a livestock waste lagoon registration form shall review the form to determine that all required information has been provided. The person filing the registration shall be Suggested State Legislation - 175

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notified within [fifteen (15)] working days that the registration is complete or that clarification of information is needed. No later than [ten (10)] working days after receipt of the clarification information, the [Department] shall notify the owner or operator that the registration is complete. The [Department] shall inspect an earthen livestock waste lagoon during preconstruction, construction, and post-construction. The [Department] shall require modifications when necessary to bring construction in compliance with the standards as set forth in subsection (a) of Section 4. The person making the inspection shall discuss with the owner, operator, certified livestock manager an evaluation of the livestock waste lagoon construction and shall (i) provide on-site written recommendations to the owner or operator or, certified livestock manager of what modifications are necessary or (ii) inform the owner, operator, or certified livestock manager that the lagoon meets the standards set forth in subsection (a), of Section 4. On the day of the inspection, the person making the inspection shall give the owner, operator, or certified livestock manager a written report of his or her findings based on the inspection, together with an explanation of any remedial measures necessary to enable the lagoon to meet the standards set forth in subsection (a). The person making any inspection shall comply with reasonable animal health protection procedures as requested by the owner, et operator, or certified livestock manager. Upon completion of the construction or modification, but prior to placing the lagoon in service, the owner or operator of the livestock waste lagoon shall certify on a form provided by the [Department] that the lagoon has been constructed or modified in accordance with the standards set forth in subsection (a) of Section 4 and that the information provided on the registration form is correct. (1) The certification notice to the [Department] shall include a certification statement and signature. (2) The certification shall state: Â&#x201C;I hereby certify that the information provided on this form is correct and that the lagoon has been constructed in accordance with the standards as required by the [Livestock Management Facilities Act.Â&#x201D;] The owner or operator of the lagoon may proceed to place the lagoon in service no earlier than [ten (10)] working days after submitting to the [Department] a certification of compliance statement. (c) Public informational meeting. Within [seven (7)] days after receiving a registration form giving notice of an intent to construct or modify an earthen livestock waste lagoon after the effective date of this Act, the [Department] shall send a copy of the registration form to the county board of the county in which the lagoon is or is to be located. After receiving a copy of a lagoon registration form from the [Department] under this subsection, within [thirty (30)] days the county board may at its discretion request that

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the [Department] conduct a public informational meeting within [fifteen (15)] days of the request concerning the proposed construction or modification of the lagoon. If the [Department] conducts such a meeting, then at least [ten (10)] days before the meeting, the [Department] shall cause notice of the meeting to be published in a newspaper of a general circulation in the county or the state newspaper. The owner or operator who submitted the registration form to the [Department] shall appear at the meeting. At the meeting, the [Department] shall afford members of the public an opportunity to ask questions and present oral or written testimony concerning the proposed construction or modification of the lagoon. (d) Complaint procedure. Any person having a complaint concerning an earthen livestock waste lagoon may file a complaint with the [Agency]. If the [Agency] finds that groundwater has been negatively impacted because of structural problems with the earthen lagoon, the [Agency] shall notify the [Department] that modification of the lagoon is necessary. The livestock owner or operator or the [Department] may request guidance from the United States Department of Agriculture Natural Resource Conservation Service or the [University of Illinois Cooperative Extension Service.] The person making any inspection shall comply with animal health protection procedures as requested by the owner or operator. Any earthen livestock waste lagoon in service prior to the effective date of the rules for implementation of this Act is not subject to registration but is only subject to the complaint procedure. However, any such livestock waste lagoon found impacting groundwater shall be required to be repaired, modified, or have procedures instituted so groundwater is not negatively impacted. If an investigation reveals groundwater has been negatively impacted, the [Department] and [Agency] shall cooperate with the owner or operator of the affected livestock waste lagoon to provide a reasonable solution to protect the groundwater. Nothing in this Section shall limit the [Agency]Â&#x2019;s authority under [insert citation] to investigate and respond to violations of [insert citation.] (e) Livestock waste lagoon registration fee. The livestock waste lagoon registration fee is [fifty (50)] dollars. (f) [Reporting Release of Waste.] An owner or operator of a lagoon shall report to the [Agency] any release of livestock waste from a lagoon within [twenty-four (24)] hours after the discovery of the release. The procedure for reporting releases shall be adopted by the [Agency] by rule. For a first violation of this subsection (f) by the owner or operator of a livestock management facility or livestock waste-handling facility, the [Department] shall send the owner or operator a written notice of the violation by certified mail, return receipt requested. If after an administrative hearing the [Department] finds that the owner or operator of a livestock management facility or livestock waste-handling Suggested State Legislation - 177

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facility has committed a second violation of this subsection (f), the [Department] shall impose on the owner or operator a civil administrative penalty in an amount not exceeding [one thousand (1,000)] dollars. The Attorney General may bring an action in the circuit court to enforce the collection of a penalty imposed under this subsection (f). If after that the owner or operator of a livestock management facility or livestock waste-handling facility has committed a third violation of this subsection (f), the [Department] shall enter an administrative order directing that the owner or operator cease operation of the facility until the violation is corrected. If a livestock management facility or livestock waste-handling facility has not committed a violation of this subsection (f) within the [five (5)] years immediately preceding a violation, the violation shall be construed and treated as a first violation. (g) Closure of livestock waste lagoons. When any earthen livestock waste lagoon is removed from service, it shall be completely emptied. Appropriate closure procedures shall be followed as determined by rule. The remaining hole must be filled. The closure requirements shall be completed within [two (2)] years from the date of cessation of operation Unless the lagoon is maintained or serviced. The [Department] may grant a waiver to the before-stated closure requirements that will permit the lagoon to be used for an alternative purpose. Upon a change in ownership of a registered earthen livestock waste lagoon, the owner shall notify the [Department] of the change within [thirty (30)] working days of the closing of the transaction. (h) Administrative authority. All actions of the [Department of Agriculture] are subject to the state [Administrative Procedure Act.] Any earthen livestock waste lagoon subject to registration shall not begin operation until the owner or operator of the lagoon has met the requirements of this Act. The owner or operator of any earthen livestock waste lagoon subject to registration that has not been registered or constructed in accordance with standards set forth in subsection (a) of Section 4 shall, upon being identified as such by the [Department], be given written notice by, the [Department] to register and certify the lagoon within [ten (10)] working days of receipt of the notice. The [Department] may inspect such lagoon and require compliance in accordance with subsections (a) and (b) of this Section. If the owner or operator of the livestock waste lagoon that is subject to registration fails to comply with the notice, the [Department] may issue a cease and desist order until such time as compliance is obtained with the requirements of this Act. Failure to construct the lagoon in accordance with the construction plan and [Department] recommendations is a business offense punishable by a fine of not more than [five thousand (5,000)] dollars.

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Section 5. [Inspection of Earthen Livestock Waste Lagoons.] At least once each year on a random basis, the [Department] shall inspect every earthen livestock waste lagoon that services [one thousand (1,000)] or more animal units and is required to be registered under this Act. The owner or operator of the lagoon or a certified livestock manager must be present during the inspection. If the owner, operator, or certified livestock manager is not present at the scheduled date, time, and place of the inspection, the inspection shall proceed in his or her absence. The person making the inspection shall conduct a visual inspection to determine only whether any of the following are present: burrow holes, trees or woody vegetation, proper freeboard, erosion, settling of the berm, bermtop maintenance, leaks, and seepage. The person making the inspection shall discuss with the owner, operator, or certified livestock manager an evaluation of the livestock waste lagoonÂ&#x2019;s current condition and shall (i) provide onsite written recommendations to the owner, operator, or certified livestock manager of what corrective actions are necessary or (ii) inform the owner, operator, or certified livestock manager that the lagoon meets the standards set forth in this subsection. The person making any inspection shall comply with reasonable animal health protection procedures as requested by the owner, operator, or certified livestock manager. The [Department] shall send official written notice of any deficiencies to the owner or operator of the lagoon by certified mail, return receipt requested. The owner or operator and the [Department] shall enter into an agreement of compliance setting forth the specific action and timetable to correct the deficiencies. The person making the reinspection shall notify the [Department] of the results of the reinspection, and the [Department] shall take the appropriate action under this Section. If the [Department]Â&#x2019;s inspector finds a release or evidence of a release, the [Department] shall immediately report such information to the [Agency.] For a first violation of this section by the owner or operator of a livestock management facility or livestock waste-handling facility, the [Department] shall send the owner or operator a written notice of the violation by certified by mail, return receipt requested. If after an administrative hearing the [Department] finds that the owner or operator of a livestock management facility or livestock waste-handling facility has committed a [second (2)] violation of this Section, the [Department] shall impose on the owner or operator a civil administrative penalty in an amount not exceeding [one thousand (1,000)] dollars. The [Attorney General] may bring an action in the circuit court to enforce the collection of a penalty imposed under this Section. If after an administrative hearing the [Department] finds that the owner or operator of a livestock management facility or livestock waste-handling facility has committed a [third (3)] violation of this Section, the [DepartSuggested State Legislation - 179

Livestock Management Facilities 45 46 47 48 49 50

ment] shall enter an administrative order directing that the owner or operator cease operation of the facility until the violation is corrected. If, a livestock management facility or livestock waste-handling facility has not committed a violation of this Section within the [five (5)] years immediately preceding a violation, the violation shall be construed and treated as a [first (1)] violation.

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Section 6. [Financial Responsibility.] Owners of new or modified lagoons registered under the provisions of this Act shall establish and maintain evidence of financial responsibility to provide for the closure of the lagoons and the proper disposal of their contents within the time provisions outlined in this Act. Financial responsibility may he evidenced by any combination of the following: (1) Commercial or private insurance; (2) Guarantee; (3) Surety bond; (4) Letter of credit; (5) Certificate of Deposit or designated savings; (6) Participation in a livestock waste lagoon closure fund managed by the state [Farm Development Authority.] The level of surety required shall be determined by rule and be based upon the volumetric capacity of the lagoon. Surety instruments required under this Section shall be required after the effective date of rules adopted for the implementation of this Act.

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Section 7. [Handling, Storing and Disposing of Livestock Waste.] (a) The livestock management facility owner or operator shall comply with the requirements for handling, storing, and disposing of livestock wastes as set forth in the rules adopted pursuant to the [insert citation] concerning agriculture related pollution. (b) the livestock management facility owner or operator at a facility of less than [one thousand (1,000)] animal units shall not be required to prepare and maintain a waste management plan. (c) The livestock management facility owner or operator at a facility of [one thousand (1,000)] or greater animal units but less than [seven thousand (7,000)] animal units shall prepare and maintain on file at the livestock management facility a general waste management plan. Notwithstanding this requirement, a livestock management facility subject to this subsection may be operated on an interim basis but not to exceed [six (6)] months after the effective date of the rules promulgated pursuant to this Act to allow for the owner or operator of the facility to develop a waste management plan. The waste management plan shall be available for inspection during normal business hours by [Department] personnel. (d) The livestock management facility owner or operator at a facility of

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[seven thousand (7,000)] or greater animal units shall prepare, maintain, and submit to the [Department] the waste management plan for approval. Approval of the waste management plan shall be predicated on compliance with provisions of subsection (f). The waste management plan shall be approved by the [Department] before operation of the facility or in the case of an existing facility, the waste management plan shall be submitted within [sixty (60)] working days after the effective date of the rules promulgated pursuant to this Act. The owner or operator of an existing livestock management facility that through growth meets or exceeds [seven thousand (7,000)] animal units shall file its waste management plan with the [Department] within [sixty (60)] working days after reaching the stated animal units. The owner or operator of a livestock management facility that is subject to this subsection (d) shall file within [sixty (60)] working days with the [Department] a revised waste management plan when there is a significant change in items (l), (2), or (10) of subsection (f) that will materially affect compliance with the waste management plan. (e) The waste management plan and records of livestock waste disposal shall be kept on file for [three (3)] years. (f) The application of livestock waste to the land is an acceptable, recommended, and established practice in this state. However, when livestock waste is not applied in a responsible manner, it may create pollution problems. It should be recognized that, in most cases, if the agronomic nitrogen rate is met, the phosphorus applied will exceed the crop requirements, but not all of the phosphorus may be available for use by the crop. It will be considered acceptable, therefore, to prepare and implement a waste management plan based on the nitrogen rate. The waste management plan shall include the following: (1) An estimate of the volume of waste to be disposed of annually. (2) The number of acres available for disposal of the waste. (3) An estimate of the nutrient value of the waste. (4) An indication that the livestock waste will be applied at rates not to exceed the agronomic nitrogen demand of the cross to be grown when averaged over a [five (5)] year period. (5) A provision that livestock waste applied within [one-quarter (1/ 4)] mile any residence not part of the facility shall be injected or incorporated on the day of application. However, livestock management facilities and livestock waste handling facilities that have irrigation systems in operation prior to the effective date of this Act or existing facilities applying waste on frozen ground are not subject to the provisions of this item (5). (6) A provision that livestock waste may not be applied within [two hundred (200)] feet of surface water unless the water is upgrade or there is adequate diking, and waste will not be applied within [one hundred fifty (150)] feet of potable water supply wells. Suggested State Legislation - 181

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(7) A provision that livestock waste may not be applied in a [ten (l0)] year flood plain unless the injection or incorporation method of application is used. (8) A provision that livestock waste may not be applied in waterways. (9) A provision that if waste is spread on frozen or snow-covered land, the application will be limited to land areas on which: (A) land slopes are [five (5)] percent or less, or (B) adequate erosion control practices exist. (10) Methods for disposal of animal waste. (g) Any person who is required to prepare and maintain a waste management plan and who fails to do so shall be issued a warning letter by the [Department] for the [first (1)] violation and shall be given [thirty (30)] working days to prepare a waste management plan. For failure to prepare and maintain a waste management plan, the person shall be fined an administrative penalty of up to [one thousand (1,000)] dollars by the [Department] and shall be required to enter into an agreement of compliance to prepare and maintain a waste management plan within [thirty (30)] working days for failure to prepare and maintain a waste management plan after the [second (2)] [thirty (30)] day period or for failure to enter into a compliance agreement, the [Department] may issue an operational cease and desist order until compliance is attained.

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Section 8. [Odor Control.] (a) Operators of livestock waste handling facilities shall practice odor control methods during the course of manure removal and field application. Odor control methods shall be those methods identified in the rules adopted pursuant to the [insert citation] concerning agriculture related pollution. (b) Every single-stage livestock waste lagoon constructed after the effective date of this Act shall comply with the following operational guidelines: (1) In operation, the lagoon must be maintained at not less than the minimum design volume. (2) The livestock waste supply to the lagoon must be below the minimum design volume level. (3) The livestock waste storage capacity of the lagoon must be greater than [two hundred seventy (270)] days. (c) Above-ground livestock waste holding structures must be operated using odor control management guidelines based on scientific peer review accepted by the [Department] and determined to be economically feasible to the specific operation. (d) For a first violation of this Section by the owner or operator of a livestock management facility or livestock waste-handling facility, the [De-

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partment] shall send the owner or operator a written notice of the violation by certified mail, return receipt requested. If after an administrative hearing the [Department] finds that the owner or operator of a livestock management facility or livestock waste-handling facility has committed a second violation of this Section, the [Department] shall impose on the owner or operator a civil administrative penalty in an amount not exceeding [one thousand (1,000)] dollars. The [Attorney General] may bring an action in the circuit court to enforce the collection of a penalty imposed under this Section. If after an administrative hearing the [Department] finds that the owner or operator of a livestock management facility or livestock waste-handling facility has committed a [third (3)] violation of this Section, the [Department] shall enter an administrative order directing that the owner or operator cease operation of the facility until the violation is corrected. If a livestock management facility or livestock waste-handling facility has not committed a violation of this Section within the [five (5)] days immediately preceding a violation, the violation shall be construed and treated as a first violation.

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Section 9. [Certified Livestock Manager.] The [Department] shall establish a [Certified Livestock Manager Program] in conjunction with the livestock industry that will enhance management skills in critical areas, such as environmental awareness, safety concerns, odor control techniques and technology, neighbor awareness, current best management practices, and the developing and implementing of manure management plans. (a) A livestock waste-handling facility serving [three hundred (300)] or greater animal units shall be operated only under the supervision of a certified livestock manager. Notwithstanding the before-stated provision, a livestock waste handling facility may be operated on an interim basis, but not to exceed [six (6)] months, to allow for the owner or operator of the facility to become certified. (b) A certification program shall include the following: (1) A general working knowledge of best management practices. (2) A general working knowledge of livestock waste handling practices and procedures. (3) A general working knowledge of livestock management operations and related safety issues. (4) An awareness and understanding of the responsibility of the owner or operator for all employees who may be involved with waste handling. (c) Any certification issued shall be valid for [three (3)] years and thereafter be subject to renewal. A renewal shall be valid for a [three (3)] year period and the procedures set forth in this Section shall be followed. The [Department] may require anyone who is certified to be recertified in less Suggested State Legislation - 183

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than [three (3)] years for just cause including but not limited to repeated complaints where investigations reveal the need to improve management practices. (d) Methods for obtaining certified livestock manager status. (1) The owner or operator of a livestock waste-handling facility serving [three hundred (300)] or greater animal units but less than [one thousand (1,000)] animal units shall become a certified livestock manager, by: (A) attending a training session conducted by the [Department of Agriculture, Cooperative Extension Service,] or any agriculture association, which has been approved by or is in cooperation with the [Department;] or (B) in lieu of attendance at a training session, successfully completing a written competency examination. (2) The owner or operator of a livestock waste-handling facility serving [one thousand (1,000)] or greater animal units shall become a certified livestock manager by attending a training session conducted by the [Department of Agriculture, Cooperative Extension Service,] or any agriculture association, which has been approved by or is in cooperation with the [Department] and successfully completing a written competency examination. (e) The certified livestock manager certificate shall be issued by the [Department] and shall indicate that the person named on the certificate is certified as a livestock management facility manager, the dates of certification, and when renewal is due. (f) The [Department] shall charge [ten (10)] dollars for the issuance or renewal of a certified livestock manager certificate. The [Department] may, by rule, establish fees to cover the costs of materials and training for training sessions given by the [Department]. (g) The owner or operator of a livestock waste-handling facility operating in violation of the provisions of subsection (a) of this Section shall be issued a [warning letter for the first violation] and shall be required to have a certified manager for the livestock waste-handling facility within [thirty (30)] working days. For continued failure to comply, the [Department] may issue an [operational cease and desist order] until compliance is attained.

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Section 10. [Setbacks for Livestock Management and Livestock Handling Facilities.] (a) Livestock management facilities and livestock waste handling facilities in existence prior to [July 15, 1991] shall comply with setbacks in existence prior to [July 15, 1991,] as set forth in [insert citation.] (b) Requirements governing the location of a new livestock management facility and new livestock waste-handling facility and conditions for exemptions or compliance with the maximum feasible location as provided in rules adopted pursuant to [insert citation] concerning agriculture regu-

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lated pollution shall apply to those facilities identified in subsections (b) and (c) of this Section. With regard to the maximum feasible location requirements, any reference to a setback distance in the rules under [insert citation] shall mean the appropriate distance as set forth in this Section. (c) Setback category shall be determined by the design capacity in animal units of the livestock management facility. (d) Setbacks may be decreased when innovative designs as approved by the [Department] are incorporated into the facility. (e) A setback may be decreased when waivers are obtained from owners of residences that are occupied and located in the setback area.

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Section 11. [Environmental Research.] Environmental research is critical to a livestock producerÂ&#x2019;s ability to implement sound, integrated management systems that will enhance industry profitability and protect the environment. The [Department of Agriculture] shall annually request appropriations to fund environmental research projects pertinent to livestock management facilities. Projects may include both university research and on-farm applied research. Priorities should be given to the following: (1) Determination of the contribution of soil applied livestock nutrient volatilization, leaching or storage in the soil and methods of application. (2) Integrated systems that maintain and enhance water quality. (3) Odor reduction and control through chemical, biological, or mechanical means. (4) Environmental quality in livestock facilities affecting owner, operator, and employee health. (5) Environmental quality that could affect residents who live adjacent to livestock facilities.

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Section 12. [Tax Abatement on Environmental Equipment.] The [Department] in cooperation with the [Agency] and the [Department of Revenue] shall recommend to the [General Assembly] incentive programs that will provide for the abatement of state income tax or real estate tax on capital expenditures made by the facility owner for purchasing equipment that will mitigate air and water quality problems.

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Section 13. [Intergovernmental Cooperation.] The [Department] shall consult and advise owners and operators of livestock management facilities serving [seven thousand (7,000)] or greater animal units of applicable laws and rules relating to environmental laws and rules, water usage laws and local road standards.

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tee.]

Section 14. [Rules; Livestock Management Facilities Advisory CommitSuggested State Legislation - 185

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(a) There is hereby established a [Livestock Management Facilities Advisory Committee,] which shall include the [Directors] of the [Department of Agriculture,] the [Environmental Protection Agency,] the [Department of Natural Resources,] and the [Department of Public Health,] or their designees. The [Director of Agriculture] or his or her designee shall serve as the [Chair] of the [Advisory Committee.] Members of the [Advisory Committee] may organize themselves as they deem necessary and shall serve without compensation. (b) The [Advisory Committee] shall review, evaluate, and make recommendations to the [Department of Agriculture] for rules necessary for the implementation of this Act. Based upon the recommendations of the [Advisory Committee,] the [Department of Agriculture] shall, within [six (6)] months after the effective date of this Act, propose rules to the [Pollution Control Board] for the implementation ofÂ&#x2019; this Act. (c) Within [six (6)] months after the [Department of Agriculture] proposing rules to the [Pollution Control Board,] the [Board] shall hold hearings on and adopt rules for the implementation of this Act in the manner provided for in [insert citation.] Rules adopted pursuant to this Section shall take into account all available pollution control technologies, shall be technologically feasible and economically reasonable, and may make distinctions for the type and size of livestock management and livestock management handling facilities and operations. (d) The [Advisory Committee] shall meet once every [six (6)] months after the effective date of this Act to review, evaluate, and make recommendations to the [Department of Agriculture] concerning the [DepartmentÂ&#x2019;s] random inspection of livestock waste lagoons under Section 16 of this Act.

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Section 15. [The Livestock Management Facilities Fund.] The [Livestock Management Facilities Fund] is created as a [special] fund in the state Treasury. All fees and fines collected under this Act shall be deposited into this fund. Money from this fund shall be appropriated to the [Department] for the purposes of this Act.

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Section 16. Nothing in this Act shall be construed as a limitation or preemption of any statutory or regulatory authority under [insert citation.]

Section 17. [Severability.] [Insert severability clause.]

Section 18. [Repealer.] [Insert repealer clause.]

Section 19. [Effective Date.] [Insert effective date.]

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Livestock Waste Management This Act provides for improved regulation of waste from livestock facilities in order to prevent pollution, especially to the waters of the state. It is the intent of the Act to address the various possible routes of livestock waste pollution which could threaten surface and groundwater quality in the state including leaching from lagoons or land application, runoff from land application, and catastrophic failure of lagoons or other containment structures. These concerns are addressed through inspection, review and oversight to ensure proper design, engineering and operation of waste disposal facilities, land application and best management practices for runoff control. The Act also includes some provisions related to odor abatement. The Act creates four size classes of facilities and authorizes greater scrutiny of the larger facilities because if a large facility does have problems the greater concentration of waste can overcome the assimilative capacity of natural systems far beyond their ability to sustain the damage. The classes are based on the number of Animal Units in a facility (one AU = 1 cow, or .4 hogs). The Act establishes criteria for permits and fees to build, operate and inspect such facilities. Permits may be denied for previous actions or history of environmental violations or misrepresentation on a permit application. The state Department of Environmental Quality (DEQ) may contract with a Natural Resources District (NRD) to do some aspects of regulation and cooperative work with facilities, but DEQ retains actual permitting authority and oversight. DEQ may use fee money for costs of the contracted NRD activities. This provision is especially intended to involve the interested NRDs in nutrient management planning and control of land application of the waste, and in groundwater monitoring. It does not preclude the NRDs from involvement in other aspects of regulation under the Act. The DEQ may identify dams or lagoons which could discharge to waters of the state in the event of failure for which they may require an additional Department of Water Resources (DWR) inspection. DWR engineers have expertise in dam design and construction and this provision attempts to avoid the major dam or lagoon failures which caused massive pollution of rivers. The Act creates an Environmental Quality Council and directs the council to adopt rules and regulations for this permit and inspection program including: Design, construction, operating permit criteria and fees; A registry for potential permittees; Adequate land area for waste application; Best management practices to reduce waste runoff and odor; Suggested State Legislation - 187

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Groundwater monitoring requirements; Record keeping and reporting; Financial assurance requirements for class III facilities; Employee training and closure requirements.

* Concentrated or large animal waste lots can also be subject to the U.S. EPA s National Pollutant Discharge Elimination System. Applicable components of these regulations are outlined on the following pages as an aid to readers. Submitted as: Nebraska LB 1209 Enacted into law, 1998.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as the Livestock Waste Management Act.

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Section. 2. [Definitions.] For purposes of the [Livestock Waste Management Act:] (1) Animal unit means a unit of measurement for any livestock operation calculated by adding the following numbers: The number of slaughter and feeder cattle multiplied by [1.0,] plus the number of mature dairy cattle multiplied by [1.4,] plus the number of swine weighing [fifty-five (55)] pounds or more multiplied by [0.4,] plus the number of weaned pigs weighing less than [fifty-five (55)] pounds multiplied by [0.04,] plus the number of sheep multiplied by [0.1,] plus the number of horses multiplied by [2.0,] plus the number of chickens multiplied by [0.01,] plus the number of turkeys multiplied by (0.02), plus the number of ducks multiplied by [0.2.] Such calculation may be modified for immature animals under section 13 of this Act; (2) Best management practices means schedules of activities, prohibitions, maintenance procedures, and other management practices found to be the most effective and practicable methods for specific sites to prevent or reduce the discharge of pollutants to waters of the state or control odor where appropriate. Best management practices also includes operating procedures and practices to control site runoff, spillage, leaks, sludge or waste disposal, or drainage from raw material storage; (3) Council means the [Environmental Quality Council;] (4) Department means the [Department of Environmental Quality;] (5) Discharge means the accidental or intentional spilling, leaking, pump-

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ing, pouring, emitting, emptying, or dumping of pollutants into any waters of the state or in a place which will likely reach waters of the state; (6) Existing livestock waste control facility means any livestock waste control facility that holds a permit issued by the [department] before the operative date of this section; (7) Livestock operation means the feeding or holding of beef cattle, dairy cattle, horses, swine, sheep, poultry, and other livestock in buildings, lots, or pens which normally are not used for the growing of crops or vegetation but does not include the holding of cattle in calving operations for less than [ninety (90)] days per year. [Two (2)] or more livestock operations under common ownership are deemed to be a single livestock operation if they are adjacent to each other or if they utilize a common area or system for the disposal of livestock wastes; (8) Livestock waste control facility means any structure or combination of structures utilized to control livestock waste until it can be used, recycled, or disposed of in an environmentally acceptable manner. Such structures include, but are not limited to, diversion terraces, holding ponds, debris basins, liquid manure storage pits, lagoons, and other such devices utilized to control livestock waste; (9) New livestock waste control facility means any livestock waste control facility that applies for a permit from the [department] on or after the operative date of this section; (10) Person has the same meaning as in [insert citation;] (11) Prior pending application means an application for a livestock waste control facility received by the [[department]] prior to the operative date of this section; and (12) Waters of the state has the same meaning as in [insert citation.]

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Section 3. [Task Force.] In order to implement the [Livestock Waste Management Act,] the [Governor] shall appoint a [livestock waste management task force] to work with the [department] to conduct the study as required by subsection (2) of section 8 of this Act. [Task force] members shall include: (1) [Three (3)] representatives of the livestock industry, [one (1)] representing a [class I] livestock waste control facility, [one (1)] representing a [class II] livestock waste control facility, and [one (1)] representing either a [class III] or [class IV] livestock waste control facility; (2) A [biological systems engineer] from the [University of Nebraska;] (3) [One (1)] elected representative from the [natural resources districts] who is not involved in the livestock industry; (4) An [agronomist] from the [University of Nebraska;] (5) A representative from the [natural resource conservation service;] (6) A member of the [general public representing environmental interests;] and (7) A representative of [municipalities.] Suggested State Legislation - 189

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The [task force] shall cease to exist on [December 1, 1998.] Section 4. [Permits and Classification.] (1) When there is a potential for discharge into waters of the state, as determined by the [department:] (a) No person shall construct a livestock waste control facility without first obtaining a construction permit from the [department;] and (b) No person shall operate a livestock waste control facility without an operating permit or interim use authorization from the [department.] (2) Livestock waste control facilities shall be classified according to the [maximum] number of animal units for which the livestock waste control facility is designed. The [council,] in adopting rules and regulations under section 13 of this Act, shall set out the requirements for any livestock waste control facility which is reclassified after permit issuance. Classifications shall be as follows: (a) A [class I] livestock waste control facility is designed for [one thousand (1,000)] or less animal units; (b) A [class II] livestock waste control facility is designed for more than [one thousand (1,000)] and [five thousand (5,000)] or less animal units; (c) A [class III] livestock waste control facility is designed for more than [five thousand (5,000)] animal units and [twenty thousand (20,000)] or less animal units; and (d) A [class IV] livestock waste control facility is designed for more than [twenty thousand (20,000)] animal units.

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Section 5. [Forms.] Any person required to obtain a permit under section 4 of this Act may begin construction of the proposed livestock operation after the person acknowledges on a form provided by the [department] that a permit may not be approved.

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Section 6. [Inspections.] (1) Any person owning or operating a livestock operation that does not hold a permit or has not been notified by the [department] that no permit was required shall, on forms prescribed by the [department,] request the [department] to inspect such personÂ&#x2019;s livestock operation to determine if a livestock waste control facility is required. If an inspection is requested prior to [January 1, 1999,] an inspection fee for such inspection shall not be assessed. For inspections requested on or after [January 1, 1999,] there shall be an inspection fee of [fifty (50)] dollars for a [class I] or [class II] livestock waste control facility and an inspection fee of [five hundred (500)] dollars for a [class III] or [class IV] livestock waste control facility. A person who requests an inspection prior to [January 1, 2000,] shall not be determined by the [department] to be in violation of the permitting provisions of the [Livestock Waste Management Act] prior to issuance or denial of a per-

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mit for such livestock waste control facility. However, the person shall not violate any provisions of the [insert citation.] (2) The Department shall, in conjunction with [natural resources districts] and the [Cooperative Extension Service of the University of Nebraska,] publicize information to make owners and operators of affected livestock operations aware of the need to request an inspection.

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Section 7. [Permits; Validity and Modification.] (1) A permit issued under section 4 of this Act or a permit for an existing livestock waste control facility shall be valid as long as the livestock operation continues to operate. The [department] may modify any permit during its term in the event rules and regulations adopted under the [Livestock Waste Management Act] change in such a manner as to affect provisions in the permit. The [department] may require the permit holder to furnish such information as is necessary to determine compliance with current rules and regulations. (2) The [department,] in modifying permits under this section, shall include conditions in the permit which will allow a reasonable period of time of up to [one (1)] year to achieve compliance with the rules and regulations and the Act. Modifications shall be done in accordance with [insert citation] and pursuant to rules and regulations as adopted under section 13 of this Act. (3) Any person holding a permit issued under section 4 of this Act or a permit issued for an existing livestock waste control facility shall notify the [department] of a change of ownership and other information as prescribed by the [department] for purposes of review under section 9 of this Act.

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Section. 8. [Applications and Fees.] (1) On or after June 1, 1998, any person required to obtain a permit for a livestock waste control facility under section 4 of this Act shall file an application with the [department] in the manner established by the [department.] The application fees shall be [three hundred (300)] dollars for a [class I] livestock waste control facility, [eight (800)] hundred dollars for a [class II] livestock waste control facility, [one thousand five hundred (1,500)] dollars for a [class III] livestock waste control facility, and [five thousand (5,000)] dollars for a [class IV] livestock waste control facility. For permit modifications the fee shall equal the [amount of the application fee for the class of the proposed modification minus the application fee paid for the original application.] If the permit modification will result in a lower class designation, there shall be no fee. (2) The [department,] in conjunction with the [livestock waste management task force,] shall conduct a study to recommend appropriate inspection or operation fees which may be charged to livestock waste control facilities under the [Livestock Waste Management Act.] Such fees shall, if Suggested State Legislation - 191

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implemented, in conjunction with other recommended revenue sources, be sufficient to pay the costs of administering and enforcing the Act. Such study shall also include best management practices for odor control, the feasibility of requiring financial assurance requirements for [class III] and class IV livestock waste control facilities and the creation of an indemnification fund, and an analysis of the new technologies available relating to the disposal of dead animals. A report of such study shall be submitted to the [Natural Resources Committee] of the [Legislature] no later than [December 1, 1998.] (3) All fees collected under this section and section 6 of this Act shall be remitted to the [State Treasurer] for credit to the [Livestock Waste Management Cash Fund] which is created for the purposes described in the Act. Any money in the fund available for investment shall be invested by the [state investment officer] pursuant to the [insert citation.] (4) On or before [January 1] of each year, the [department] shall submit a report to the [Legislature] in sufficient detail to document all direct and indirect costs incurred in the previous fiscal year in carrying out the [Livestock Waste Management Act] including the number of inspections conducted for each class of livestock waste control facility, the number of permitted livestock waste control facilities, the number of livestock operations inspected, the size of the livestock waste control facilities, and other elements relating to carrying out the Act. The [Appropriations Committee] of the [Legislature] shall review the report in its analysis of executive programs in order to verify that the revenue generated from fees was used solely to offset appropriate and reasonable costs associated with carrying out the Act.

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Section 9. [Disqualification.] (1) In addition to other permit review determinations under the [Livestock Waste Management Act] and the [insert citation,] the [department] may reject an application for a construction or operating permit, including a prior pending application for a permit, for a livestock waste control facility upon a finding that the applicant is unsuited or unqualified to perform the obligations of a permit holder. An applicant is unsuited or unqualified to perform the obligations of a permit holder if the applicant, any officer, director, partner, or resident general manager of the livestock operation for which application has been made: (a) Has intentionally misrepresented a material fact in applying for a permit; (b) Has habitually or intentionally violated environmental laws of any state or the United States or any other nation, which violation has resulted in significant and material environmental damage; (c) Has had any permit revoked due to a violation of the environmental laws of any state or the United States or any other nation; or

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(d) Has otherwise demonstrated through clear and convincing evidence of previous actions that the applicant lacks the necessary competency to reliably carry out the obligations imposed by law upon the permit holder. (2) An application for a permit for a livestock waste control facility shall include a certification, sworn under oath and signed by the applicant, that he or she is suited or qualified under this section to obtain such a permit. Any material misrepresentation of fact in regard to this certification may result in rejection of the application or revocation of an existing permit as provided for in this section.

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Section 10. [Post Construction Inspection.] The [department,] or an individual or organization the [department] deems qualified, shall perform a post construction inspection on all livestock waste control facilities requiring a permit prior to use of the livestock waste control facility and within [thirty (30)] days after the [department] receives notification of the completion of the facility. Such period may be reasonably extended by the [department] due to adverse weather conditions or an act of God that would not allow an inspection within [thirty (30)] days. If the inspection is not done within the time specified in this section, the livestock waste control facility may proceed with operations.

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Section 11. [Contracts.] (1) In carrying out its responsibilities under the [Livestock Waste Management Act,] the [department] may contract with the various [natural resources districts] as appropriate. The contract may include all tasks or duties necessary to carry out the Act but shall not enable the [natural resources districts] to issue permits or initiate enforcement proceedings. The contract may provide for payment of [natural resources districtsÂ&#x2019;] costs by the [department.] (2) Upon receipt of a livestock waste control facility permit application, the [department] shall notify the [natural resources district] or districts in which the livestock waste control facility is to be located of the permit application. The [natural resources district] or [districts] shall have [twenty (20)] days to comment to the [department] regarding any conditions that may exist at the proposed site which the [department] should know when determining the appropriateness of issuing such permit. Such [natural resources district] or [districts] may request the [department] for a [twenty (20)] day extension of the comment period. (3) The [department] shall notify the [county board] or [boards] when an application for a livestock waste control facility has been submitted to the [department.] (4) Upon initial receipt of the permit application, the [department] has [thirty (30)] days to conduct a preliminary review of the application and to Suggested State Legislation - 193

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formally request in writing additional information or to acknowledge that the application is complete. Within [sixty (60)] days after receipt of a completed permit application, the [department] shall transmit its written findings, conclusions, and reasons for approval or disapproval to the applicant. This subsection applies to permit applications received by the [department] on or after [September 1, 1998,] for any pending application or any new permit application. (5) The [department] shall provide for public notice of such permit application for all [class III] and [class IV] livestock waste control facilities in the county or counties where the livestock waste control facility is to be located.

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Section 12. [Application Approval.] (1) An applicant for a permit for a livestock waste control facility under the [Livestock Waste Management Act] shall, before issuance of a permit by the [Department of Environmental Quality,] obtain any necessary approvals from the [Department of Water Resources] under [insert citation,] and certify such approvals to the [Department of Environmental Quality.] The [Department of Environmental Quality,] with the concurrence of the [Department of Water Resources,] may require the applicant to obtain approval from the [Department of Water Resources] for any dam or lagoon structure, the failure of which could result in a significant discharge into waters of the state and have a significant impact on the environment. When such approval is required, the [Department of Water Resources] shall approve or deny the dam or lagoon structure within [sixty (60)] days after the request is made. The [Department of Environmental Quality] may provide for the payment of such costs of the [Department of Water Resources] with revenue generated under section 8 of this Act. (2) Notwithstanding the provisions of the [insert citation,] the [Department of Environmental Quality] shall have authority to determine engineering requirements for [class I] livestock waste control facilities and existing non-permitted livestock waste control facilities.

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Section 13. [Rules.] (1) The [council] shall adopt and promulgate rules and regulations to carry out the [Livestock Waste Management Act] within [twelve (12)] months after the operative date of this section. The rules and regulations shall include a permit program for livestock waste control facilities which provides for: (a) A permitting process which includes: (i) A construction permit which prohibits construction of a livestock waste control facility prior to its issuance; (ii) An operating permit for new and existing livestock waste control facilities to be issued after terms of the construction permit have

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been fulfilled and which may be terminated, modified, or revoked by the [department] for cause; (iii) An application process which requires a permitting determination by the [department] within [sixty (60)] days after receipt of a complete application, an acknowledgment by the applicant that a construction permit may not be approved, and an operating plan to be incorporated into the permit; (iv) Monitoring of surface or ground water by the permittee which may be necessary as determined by the [department] where a significant risk to waters of the state exists; (v) Modification of operating permits in accordance with section 7 of this Act; and (vi) Notification of the applicant by the [department] within [thirty (30)] days if the application is complete or, if the application is not complete, notification as to what information or requirements are needed; (b) Requirements for existing livestock waste control facilities whose permits are being modified under section 7 of this Act; (c) Best management practices where appropriate to specific sites to control runoff of waste, including adequate area for land application and proper methods and rates of disposal of waste and nutrients such as nitrogen and phosphorus, and best management practices for control of odor which terminate [July 1, 1999;] (d) Modifications to the calculation of animal units for immature animals; and (e) A training program for land application of waste which may include contracting with the [Cooperative Extension Service of the University of Nebraska] for curriculum development and instruction. (2) Rules and regulations adopted and promulgated under this section may be based upon size classification of livestock waste control facilities and the form of waste management and may include more stringent requirements for facilities of larger size classes and waste control technologies that are more likely to cause adverse impacts. (3) The [council] may adopt and promulgate any other rules and regulations necessary to carry out the purposes of the [Livestock Waste Management Act.]

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Section 14. [Legislative Intent.] It is the intent of the [Legislature] that in enforcing the provisions of the [Livestock Waste Management Act] the [department] shall give priority to livestock waste control facilities within classes in the following order: [class IV,] [class III,] [class II,] and [class I.]

Section 15. [Severability.] [Insert severability clause.]

Section 16. [Repealer.] [Insert repealer clause.] Suggested State Legislation - 195

Livestock Waste Management 1

Section 17. [Effective Date.] [Insert effective date.]

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Livestock Waste Management

TITLE 40 PROTECTION OF ENVIRONMENT CHAPTER I ENVIRONMENTAL PROTECTION AGENCY (CONTINUED) PART 122 EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) Table of Contents 1 2

Subpart B Permit Application and Special NPDES Program Requirements.

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Sec. 122.23 Concentrated animal feeding operations (applicable to state NPDES programs, see Sec. 123.25). (a) Permit requirement. Concentrated animal feeding operations are point sources subject to the NPDES permit program. (b) Definitions. (1) Animal feeding operation means a lot or facility (other than an aquatic animal production facility) where the following conditions are met: (i) Animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and (ii) Crops, vegetation forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. (2) Two or more animal feeding operations under common ownership are considered, for the purposes of these regulations, to be a single animal feeding operation if they adjoin each other or if they use a common area or system for the disposal of wastes. (3) Concentrated animal feeding operation means an animal feeding operation which meets the criteria in appendix B of this part, or which the Director designates under paragraph (c) of this section. (c) Case-by-case designation of concentrated animal feeding operations. (1) The Director may designate any animal feeding operation as a concentrated animal feeding operation upon determining that it is a significant contributor of pollution to the waters of the United States. In making this designation, the Director shall consider the following factors: (i) The size of the animal feeding operation and the amount of wastes reaching waters of the United States; (ii) The location of the animal feeding operation relative to waters of the United States; (iii) The means of conveyance of animal wastes and process waste waters into waters of the United States; (iv) The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes and process waste Suggested State Legislation - 197

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waters into waters of the United States; and (v) Other relevant factors. (2) No animal feeding operation with less than the numbers of animals set forth in appendix B of this part shall be designated as a concentrated animal feeding operation unless: (i) Pollutants are discharged into waters of the United States through a man-made ditch, flushing system, or other similar man-made device; or (ii) Pollutants are discharged directly into waters of the United States which originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation. (3) A permit application shall not be required from a concentrated animal feeding operation designated under this paragraph until the Director has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the permit program.

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Sec. 122.24 Concentrated aquatic animal production facilities (applicable to state NPDES programs, see Sec. 123.25). (a) Permit requirement. Concentrated aquatic animal production facilities, as defined in this section, are point sources subject to the NPDES permit program. (b) Definition. Concentrated aquatic animal production facility means a hatchery, fish farm, or other facility which meets the criteria in appendix C of this part, or which the Director designates under paragraph (c) of this section. (c) Case-by-case designation of concentrated aquatic animal production facilities. (1) The Director may designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal production facility upon determining that it is a significant contributor of pollution to waters of the United States. In making this designation the Director shall consider the following factors: (i) The location and quality of the receiving waters of the United States; (ii) The holding, feeding, and production capacities of the facility; (iii) The quantity and nature of the pollutants reaching waters of the United States; and (iv) Other relevant factors. (2) A permit application shall not be required from a concentrated aquatic animal production facility designated under this paragraph until the Director has conducted on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program.

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Local Government Service Delivery Systems This legislation requires city and county governments in the state to execute a local government service-delivery strategy agreement by July 1, 1999. The strategy must identify which services will be provided, which governments will provide the services, funding sources, and mechanisms for implementation. The strategy must promote efficient, effective, and responsive services and avoid overlapping and unnecessary competition and duplication by the service providers. The law prescribes that local governments which are not in a verified service-delivery strategy by July 1, 1999 will not be able to receive state money after that date. Strategies may be revised due to: Updated comprehensive plans; Changes in service delivery or revenue-distribution arrangements; or The creation, abolition, or consolidation of local governments. Submitted as: Georgia HB 489 Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2 3

Section 1. [Short Title.] This Act may be cited as an Act to Provide for the Adoption of a Local Government Service Delivery Strategy Agreement by Municipalities and Counties.

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Section 2. [Legislative Findings.] Local governments of this state are of vital importance to the state and its citizens. The state has an essential public interest in promoting, developing, sustaining, and assisting local governments. In addition, the natural resources, environment, and vital areas of the state are of vital importance to the state and its citizens. The state has an essential public interest in protecting and preserving the natural resources, the environment, and the vital areas of the state. The purpose of this Act is to provide for local governments to serve these essential public interests of this state by authorizing and promoting the establishment, implementation, and performance of coordinated and comprehensive planning by municipal governments and county governments, and this Act shall be construed liberally to achieve that end.

Section 3. [Definitions.] As used in this Act, the term: Suggested State Legislation - 199

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(1) Comprehensive plan means any plan by a county or municipality covering such county or municipality proposed or prepared pursuant to the minimum standards and procedures for preparation of comprehensive plans and for implementation of comprehensive plans established by the [department.] (2) Coordinated and comprehensive planning means planning by counties and municipalities undertaken in accordance with the minimum standards and procedures for preparation of plans, for implementation of plans, and for participation in the coordinated and comprehensive planning process, as established by the [department.] (3) County applies to any county of this state. (4) Department means the [Department of Community Affairs] of this state created pursuant to [insert citation.] (5) Governing authority or governing body means the board of commissioners of a county, sole commissioner of a county, council, commissioners, or other governing authority for a county or municipality. (6) Inactive municipality means any municipality which has not for a period of [three (3)] consecutive calendar years carried out any of the following activities: (A) The levying or collecting of any taxes or fees; (B) The provision of any of the following governmental services: water; sewage; garbage collection; police protection; fire protection; or library; or (C) The holding of a municipal election. (7) Local government means any county as defined in paragraph 3 of this section or any municipality as defined in paragraph 10 of this section. The term does not include any school district of this state. (8) Mechanisms includes, but is not limited to, intergovernmental agreements, ordinances, resolutions, and local Acts of the [General Assembly] in effect on [July 1, 1997,] or executed thereafter. (9) Minimum standards and procedures means the minimum standards and procedures for preparation of comprehensive plans, for implementation of comprehensive plans, and for participation in the coordinated and comprehensive planning process, as established by the [department] in accordance with [insert citation.] Minimum standards and procedures shall include any standards and procedures for such purposes prescribed by a regional development center for counties and municipalities within its region and approved in advance by the [department.] (10) Municipality means any municipal corporation of the state and any consolidated city-county government of the state. (11) Region means the territorial area within the boundaries of operation for any regional development center, as such boundaries shall be established from time to time by the board of the [department.] (12) Regional development center means a regional development cen-

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ter established under [insert citation.]

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Section 4. [Local Governments - Powers and Duties Relative to this Act.] The governing bodies of municipalities and counties are authorized: (1) To develop, or to cause to be developed pursuant to a contract or other arrangement approved by the governing body, a comprehensive plan; (2) To develop, establish, and implement land use regulations which are consistent with the comprehensive plan of the municipality or county, as the case may be; (3) To develop, establish, and implement a plan for capital improvements which conforms to minimum standards and procedures and to make any capital improvements plan a part of the comprehensive plan of the municipality or county, as the case may be; (4) To employ personnel, or to enter into contracts with a regional development center or other public or private entity, to assist the municipality or county in developing, establishing, and implementing its comprehensive plan; (5) To contract with one or more counties or municipalities, or both, for assistance in developing, establishing, and implementing a comprehensive plan, regardless of whether the contract is to obtain such assistance or to provide such assistance; and (6) To take all action necessary or desirable to further the policy of the state for coordinated and comprehensive planning, without regard for whether any such action is specifically mentioned in this Act or is otherwise specifically granted by law.

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Section 5. [Regional Development Centers.] (a) Each municipality and county shall automatically be a member of the [regional development center] for the region which includes such municipality or county, as the case may be. (b) Each municipality and county shall pay, when and as they become due, the annual dues required for membership in its [regional development center.] (c) Each municipality and county shall participate in compiling a state database and network, coordinated by the [department] to serve as a comprehensive source of information available, in an accessible form, to local governments and state agencies.

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Section 6. [Zoning.] (a) Except as provided in subsection (b) of this section, nothing in this Act shall limit or compromise the right of the governing body of any county or municipality to exercise the power of zoning. (b) Any municipality which is as of [insert date] an inactive municipality shall not exercise any powers under this Act or exercise any zoning Suggested State Legislation - 201

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powers, until and unless the municipality is restored to active status by the enactment of an appropriate new or amended charter by local Act of the [General Assembly.] Any municipality which becomes an inactive municipality after [insert date,] shall not after becoming inactive exercise powers under this or exercise any zoning powers, until and unless the municipality is restored to active status by the enactment of an appropriate new or amended charter by local Act of the [General Assembly.] (c) Any county which has located within its boundaries all or any part of any inactive municipality shall have full authority to exercise through its governing body all planning and zoning powers within the area of such inactive municipality within the county, in the same manner as if such area were an unincorporated area.

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Section 7. [Service Delivery System - Legislative Intent.] The intent of this section is to provide a flexible framework within which local governments in each county can develop a service delivery system that is both efficient and responsive to citizens in their county. The [General Assembly] recognizes that the unique characteristics of each county throughout the state preclude a mandated legislative outcome for the delivery of services in every county. The process provided by this section is intended to minimize inefficiencies resulting from duplication of services and competition between local governments and to provide a mechanism to resolve disputes over local government service delivery, funding equity, and land use. The local government service delivery process should result in the minimization of incompatible municipal and county land use plans and in a simple, concise agreement describing which local governments will provide which service in specified areas within a county and how provision of such services will be funded.

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Section 8. [Executing Local Government Service Delivery Agreements Deadlines.] Each county and municipality shall execute an agreement for the implementation of a local government service delivery strategy as set forth in this Act by [July 1, 1999.]

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Section 9. [Initiating a Process to Develop a Local Government Service Delivery Strategy - Deadlines.] Each county shall initiate the process for developing a local government service delivery strategy after [July 1, 1997,] but no later than [January 1, 1998.] Initiation of the strategy shall be accomplished by the provision of a written notice from the county to the governing bodies of all municipalities located wholly or partially within the county or providing services within the county and to other counties providing services within the county. Such notice shall state the date, time, and place for a joint meeting at which designated representatives of all local governing bodies shall assemble for the purpose of commencing delib-

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erations on the service delivery strategy. The notice shall be sent not more than [forty-five (45)] and not less than [fifteen (15)] days prior to the meeting date. In the event the county governing authority fails to initiate the process by [January 1, 1998,] any municipality within the county may do so by sending a written notice, containing the required information, to the county and all other municipalities.

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Section 10. [Strategy Components.] Each local government service delivery strategy shall include the following components: (1) An identification of all local government services presently provided or primarily funded by each general purpose local government and each authority within the county, or providing services within the county, and a description of the geographic area in which the identified services are provided by each jurisdiction; (2) An assignment of which local government or authority, pursuant to the requirements of this Act, will provide each service, the geographic areas of the county in which such services are to be provided, and a description of any services to be provided by any local government to any geographic area outside its geographical boundaries. In the event two or more local governments within the county are assigned responsibility for providing identical services within the same geographic area, the strategy shall include an explanation of such arrangement; (3) A description of the source of the funding for each service identified pursuant to paragraph (2) of this section; and (4) An identification of the mechanisms to be utilized to facilitate the implementation of the services and funding responsibilities identified pursuant to paragraphs (2) and (3) of this section.

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Section 11. [Performance Criteria.] In the development of a service delivery strategy, the following criteria shall be met: (1) The strategy shall promote the delivery of local government services in the most efficient, effective, and responsive manner. The strategy shall identify steps which will be taken to remediate or avoid overlapping and unnecessary competition and duplication of service delivery and shall identify the time frame in which such steps shall be taken. When a municipality provides a service at a higher level than the base level of service provided throughout the geographic area of the county by the county, such service shall not be considered a duplication of the county service; (2) (A) The strategy shall provide that water or sewer fees charged to customers located outside the geographic boundaries of a service provider shall not be arbitrarily higher than the fees charged to customers receiving such service which are located within the geographic boundaries of the service provider. (B) If a governing authority disputes the reasonableness of water Suggested State Legislation - 203

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and sewer rate differentials imposed within its jurisdiction by another governing authority, that disputing governing authority may hold a public hearing for the purpose of reviewing the rate differential. Following the preparation of a rate study by a qualified engineer, the governing authority may challenge the arbitrary rate differentials on behalf of its residents in a court of competent jurisdiction. Prior to such challenge, the dispute shall be submitted to some form of alternative dispute resolution; (3) (A) The strategy shall ensure that the cost of any service which a county provides primarily for the benefit of the unincorporated area of the county shall be borne by the unincorporated area residents, individuals, and property owners who receive the service. Further, when the county and one or more municipalities jointly fund a county-wide service, the county share of such funding shall be borne by the unincorporated residents, individuals, and property owners that receive the service. (B) Such funding shall be derived from special service districts created by the county in which property taxes, insurance premium taxes, assessments, or user fees are levied or imposed or through such other mechanism agreed upon by the affected parties which complies with the intent of subparagraph (A) of this paragraph; and (4) (A) Local governments within the same county shall, if necessary, amend their land use plans so that such plans are compatible and nonconflicting, or, as an alternative, they shall adopt a single land use plan for the unincorporated and incorporated areas of the county. (B) The provision of extraterritorial water and sewer services by any jurisdiction shall be consistent with all applicable land use plans and ordinances. (C) A process shall be established by [July 1, 1998,] to resolve land use classification disputes when a county objects to the proposed land use of an area to be annexed into a municipality within the county.

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Section 12. [Approval of Local Government Service Delivery Strategies.] (a) Approval of the local government service delivery strategy shall be accomplished as provided for in this section. (b) The county and each municipality within the county shall participate in the development of the strategy. Approval of the strategy shall be accomplished by adoption of a resolution: (1) By the county governing authority; (2) By the governing authority of municipalities located within the county which have a population of [nine thousand (9,000)] or greater within the county; (3) By the municipality which serves as the county site if not included in paragraph (2) of this subsection; and (4) By no less than [fifty (50)] percent of the remaining municipalities within the county which contain at least [five hundred (500)] people

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within the county if not included in paragraph (2) or (3) of this section. (c) For the purpose of determining population, the population in the most recent United States decennial census shall be utilized. (d) If a county and the necessary number of cities in the county cannot reach an agreement on the strategy, a means for facilitating an agreement through some form of alternative dispute resolution shall be employed. Where the alternative dispute resolution action is unsuccessful, the neutral party or parties shall prepare a report which shall be provided to each governing authority and made a public record. The cost of alternative dispute resolution authorized by this subsection shall be shared by the parties to the dispute pro rata based on each partyÂ&#x2019;s population according to the most recent United States decennial census. The countyÂ&#x2019;s share shall be based upon the unincorporated population of the county. (e) The adoption of a service delivery strategy specified in section 8 of this Act may be extended to a date certain no later than [one hundred twenty (120)] days following the date otherwise specified in section 8 upon written agreement of the local governments enumerated in subsection (b) of this section. In the event such an agreement is executed, the sanctions specified in section 14 shall not apply until on and after such extended date.

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Section 13. [Agreement Verification.] Each county shall file the agreement for the implementation of strategy required by section 8 with the [department.] The [department] shall, within [thirty (30)] days of receipt, verify that the strategy includes the components enumerated in section 10 and the minimum criteria enumerated in section 11 of this Act. The [department,] however, shall neither approve nor disapprove the specific elements or outcomes of the strategy.

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Section 14. [State Financial Assistance.] On and after [July 1, 1999,] no state administered financial assistance or grant, loan, or permit shall be issued to any local government or authority which is not included in a [department] verified strategy or for any project which is inconsistent with such strategy.

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Section 15. [Strategy Revisions.] Each county and municipality shall review, and revise if necessary, the approved strategy: (1) In conjunction with updates of the comprehensive plan as required by this Act; (2) Whenever necessary to change service delivery or revenue distribution arrangements; or (3) In the event of the creation, abolition, or consolidation of local governments. Suggested State Legislation - 205

Local Government Service Delivery Systems 1

Section 16. [Severability.] [Insert severability clause.]

Section 17. [Repealer.] [Insert repealer clause.]

Section 18. [Effective Date.] [Insert effective date.]

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Nonhazardous and Nonliquid Waste Handling (Statement) Illinois P.A. 90-502 of 1997 (HB 2164) law amends the state Environmental Protection Act to exclude most nonhazardous and nonliquid industrial-process and pollution-control wastes from the definition of special waste. Generally, businesses that certify that they are following the new lawÂ&#x2019;s requirements may dispose of such waste as ordinary municipal waste if the waste has never exhibited characteristics of, or been listed by the EPA as hazardous waste; if the waste is not liquid waste; and if it does not contain asbestos, polychlorinated biphenyls (PCBs) or auto fluff. Auto fluff comes from recycling and shredding vehicles. New certifications are required for each change in process or raw materials. Certifications must be provided when requested by the state EPA, the waste hauler, or the facility receiving the waste. The excluded wastes no longer require manifests (documents that track their journey from generator to receiving facility). They need not be transported by special-waste haulers; and receiving facilities need not have special-waste authorization. However, wastes that cannot have their special designation removed through the new generator-certification process must continue to be manifested and managed accordingly. The new law provides stiff penalties for false certification. Anyone who knowingly and falsely certifies that an industrial-process or pollution-control waste is not a special waste commits a Class 4 felony for a first offense, and a Class 3 felony for any subsequent offense. In addition to other penalties prescribed by law, anyone convicted of a Class 4 felony is subject to a fine not to exceed $50,000 for each day of the offense. A Class 3 felony carries a maximum fine of $250,000 for each day the offense continues. Industrial-process waste is generated directly or indirectly in the manufacture of a product or the performance of a service. Examples include chemical catalysts, paint sludge, incinerator ash, metallic dust sweepings and off-specification, contaminated or recalled wholesale or retail products. Pollution-control waste is generated directly or indirectly in the removal of contaminants from air, land or water. Examples include wastewater treatment plant sludge, baghouse dusts, landfill waste, scrubber sludge and chemical-spill cleanings. In addition to these wastes, the containers that once held them may also be excluded from the definition of special waste (and disposed of as municipal waste) provided the container no longer contains a liquid, all wastes have been removed by means appropriate for the material and the container, any remaining residue is less than one inch thick, and any inner liner has been removed and managed as special waste. Suggested State Legislation - 207

Nonhazardous and Nonliquid Waste Handling (Statement) Readers should note that the key components of this Act begin on page 30, under Section 45, Â&#x201C;Special Waste.Â&#x201D; Other less important components address dry cleaning, fluorescent bulbs and high-intensity discharge lamps. Interested readers can contact the state legislature to obtain a copy of this Act.

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Obesity It is reported that 35 percent of the adult population is obese, and that prevalence of obesity increased 35 percent over the last decade. This resolution directs the state secretary of health and hospitals to study the effect of obesity in adults and children on health complications such as diabetes, hypertension, heart disease and stroke. The resolution directs the secretary to make recommendations to improve the awareness of the problem of obesity and suggested treatment modalities, and to report the findings of the study to the legislature prior to convening the 1999 Regular Session. Submitted as: Louisiana House Concurrent Resolution 11 (enrolled version) Passed in 1998.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as a Resolution to Direct a Study of Obesity.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Section 2. [Legislative Findings.] WHEREAS, studies performed recently by the federal Center For Disease Control and Prevention and the Coalition for Excess Weight Risk Education indicate that [insert city] has a high rate of obesity relative to all major metropolitan areas in the United States, with over [insert percent] obesity among the adult population; and WHEREAS, a causal relationship exists between obesity and a number of serious disorders, including hypertension, dyslipidemia, cardiovascular disease, diabetes (type two), gall bladder disease, respiratory dysfunction, gout, and osteoarthritis; and WHEREAS, the National Institute of Diabetes and Digestive and Kidney Diseases provided information which indicates that nearly [eighty (80)] percent of patients with diabetes mellitus are obese and the incidence of symptomatic gallstones soars as a person s body mass index increases beyond a certain level; and WHEREAS, the information also reveals that nearly [seventy (70)] percent of diagnosed cases of cardiovascular disease are related to obesity, and obesity more than doubles a person s chances of developing high blood pressure, and almost half of breast cancer cases are diagnosed among obese women, and [forty-two (42)] percent of colon cancer cases are among obese Suggested State Legislation - 209

Obesity 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64

individuals; and WHEREAS, obesity ranks second only to smoking as a preventable cause of death and results in some [three hundred thousand (300,000)] deaths annually; and WHEREAS, it is estimated that [thirty-five (35)] percent of the adult population is obese and the prevalence of obesity grew a shocking [thirtyfour (34)] percent during the past [ten (10)] years; and WHEREAS, a 1997 study by Kaiser Permanente indicated that the total direct costs of obesity-related diseases in the United States in 1990 was $45.8 billion; and WHEREAS, the Kaiser study concluded that there is a significant potential for a reduction in health care expenditures through obesity prevention efforts; and WHEREAS, there is an urgent need for state health care groups and medical societies to place obesity at the top of the stateÂ&#x2019;s health care agenda; and WHEREAS, many physicians do not treat obesity because they mistakenly believe there is no treatment for it; and WHEREAS, the National Institute of Health, the American Society for Bariatric Surgery, and the American Obesity Association recommend that patients who are morbidly obese receive responsible, affordable medical treatment for their obesity; and WHEREAS, the diagnosis of morbid obesity should be a clinical decision made by a physician based on proper medical protocols; and WHEREAS, the recent breakthroughs in drug therapy can treat obesity successfully and the New England Journal of Medicine recently emphasized the legitimate use of pharmacotherapy as a component of treatment of medically significant obesity; and WHEREAS, the new breakthroughs in obesity treatment are not widely known and efforts must be made to inform the general public and health care professionals that pharmacotherapy can be used as an effective and cost-effective treatment for obesity; and WHEREAS, there is also great concern regarding what effect obesity in children may have on overall health in children, health care costs for children, and treatment modalities to address the problem of obesity in children; and WHEREAS, this study by the [Secretary] of the [Department of Health and Hospitals] is critical to raise the awareness of the public and private sectors that obesity is a disease of epidemic proportions that is treatable and that proper treatment will reduce health care costs and improve the quality of life for a large number of our citizens. THEREFORE, BE IT RESOLVED that the [Legislature] does hereby direct the [Secretary] of the [Department of Health and Hospitals] to study the effect of obesity in both adults and children on costly health complications such as diabetes, hypertension, heart disease, and stroke, and health

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complications in children, and make recommendations for improvement in awareness of the problem of obesity and suggested treatment modalities, and to report the findings of such study and such recommendations to the full [Legislature] prior to the convening of the [1999 regular] session.

Section 3. [Severability.] [Insert severability clause.]

Section 4. [Repealer.] [Insert repealer clause.]

Section 5. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 211

PerpetratorÂ&#x2019;s Assumption of Risk (Note) At least four states limit people from recovering civil damages for injuries they sustain when committing crimes; Delaware, Minnesota, Mississippi and North Dakota. Delaware HB 49, a 1997 law, prevents criminals from recovering civil damages from their victims when the criminals are injured while committing felony crimes or attempting to avoid being captured for their felony crimes. Minnesota Stat. 611A.08 declares perpetrators assume the risk of loss, injury or death resulting from or arising out of a course of criminal conduct involving a violent crime, engaged in by the perpetrator or an accomplice. This 1996 law makes crime victims immune from and not liable for any civil damages as a result of acts or omissions of the victims if the victims use reasonable force to protect themselves. Violent crimes include manslaughter, murder, assault, aggravated robbery, kidnapping, arson and criminal sexual conduct. Mississippi Chapter Law 471 of 1997 (HB 100) says perpetrators assume the risk of loss, injury or death resulting from or arising out of a course of criminal trespass, engaged in by the perpetrator or an accomplice. The law says crime victims are immune from and not liable for any civil damages as a result of acts or omissions of the victims. Criminal trespass includes arson, destroying boundary landmarks, burglary and destroying property and buildings. North Dakota SB 2221 states that a perpetrator assumes the risk of loss, injury, or death resulting from or arising out of a course of criminal conduct involving a crime, engaged in by the perpetrator or an accomplice. The 1997 law says crime victims are immune from and not liable for any damages as a result or acts or omissions of the victim. A North Dakota legislative staff report defines crimes as include murder, manslaughter, homicide, assault, terrorizing, gross sexual imposition, sexual assault, robbery, burglary or criminal trespass. Interested readers can contact the states to get a copy of the laws that are highlighted by this Â&#x201C;Note.Â&#x201D;

212 - The Council of State Governments

Premium Sharing This Act authorizes a state health agency to set up a demonstration program to provide health insurance to uninsured and chronically ill people. The law directs a state health agency to contract with a private insurance carrier to provide the insurance and uses state funds to offset the cost of the premiums to program enrollees. Submitted as: Arizona CH 186 (Laws of 1997) Enacted into law, 1997.

Suggested Legislation (Title, enacting clause, etc.) 1 2

Section 1. [Short Title.] This Act may be cited as an Â&#x201C;Act Relating to The Premium Sharing Demonstration Project.Â&#x201D;

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Section 2. [Premium Sharing Demonstration Project; Implementation; Requirements; Definitions.] (A) Beginning [October 1, 1997,] the [health care cost containment system administration] is authorized to contract with health plans that contract with the [health care cost containment system] pursuant to [insert citation,] in order to establish the premium sharing demonstration project to provide services to uninsured people as authorized pursuant to this section. If the [director] of the [health care cost containment system administration] determines there is insufficient coverage in a county participating in the demonstration project, the [director] shall attempt to contract with a prepaid capitate provider as defined in [insert citation,] to provide services under the demonstration project. Enrollees shall pay a copayment, as specified in subsection D of this section, at the time services are rendered, and a monthly premium to obtain access to medical services. The premium sharing demonstration project fund, established pursuant to [insert citation,] shall be used to subsidize portions of the enrolleeÂ&#x2019;s total premium costs. The total amount of state money that may be spent in any fiscal year by the [administration] for the premium sharing demonstration project shall not exceed the amount appropriated or authorized by [insert citation.] Enrollees shall receive medical services if they pay the required monthly premium costs minus the state subsidized amount, pay all of their copayment charges and comply with all other provisions of this section. (B) The [director] of the [health care cost containment system adminisSuggested State Legislation - 213

Premium Sharing 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67

tration] shall administer and implement the demonstration project. The [director] has full operational authority and shall use [health care group,] established pursuant to [insert citation,] to carry out the administrative functions of the demonstration project and shall: (1) Establish a process for billing and collecting the enrolleeÂ&#x2019;s copayments and monthly premiums. (2) Maintain enrollee data information. (3) Establish an aggressive disenrollment process for enrollees who default on paying premiums or who do not comply with premium payment deadlines. The [administration] shall disenroll an enrollee from the demonstration project if the enrollee fails to make the required payments within a specified period of time as prescribed by the [administration.] Participants who leave the demonstration project shall not be eligible to re-enroll for a period of [twelve (12)] months from the date of disenrollment. (4) Establish a system for tracking an enrolleeÂ&#x2019;s premium collection and noncollection. (C) For the purposes of determining eligibility, the [director of the health care cost containment system administration] shall develop: (1) A presumptive eligibility application process for demonstration project applicants to be used by participating eligibility entities. The [health care cost containment administration] may enter into an intergovernmental agreement with the [Department of Economic Security,] a county or counties or contract with the participating health plans to conduct eligibility determinations for the demonstration project. Gross annual income shall be calculated by multiplying by [four (4)] the applicantÂ&#x2019;s household income for the [three (3)] months immediately before the application for eligibility for the premium sharing demonstration project. (2) A process to review the eligibility of the enrollee every [six (6)] months. (3) Language in the contract or in the intergovernmental agreement for sanctions for erroneous eligibility determinations and a process to audit the eligibility determinations made by the entities with which the [administration] contracts or enters into intergovernmental agreements. (D) An enrollee shall receive health care services as prescribed in [insert citation,] and pursuant to the limitations and exclusions in this section, except that enrollees shall pay: (1) [Ten dollars (10)] for each physician visit. (2) [Twenty-five dollars (25)] for each emergency room visit. This fee shall be waived if the person is admitted to the hospital. (3) [Fifty (50)] dollars for each inpatient stay. (4) [Fifty (50)] dollars for each emergency room visit that is for a nonemergency situation. (5) [Three (3)] dollars for each prescription that is filled with a generic drug and [fifty (50)] percent of the cost of each prescription that is

214 - The Council of State Governments

Premium Sharing 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111

filled with a brand name pharmaceutical unless a generic drug is unavailable or not medically appropriate, in which case the enrollee shall pay [three (3)] dollars for each prescription. (6) [Eight (8)] dollars for each laboratory visit. (7) [Eight (8)] dollars for each x-ray service. (8) [Fifty (50)] dollars for each behavioral health admission to an inpatient behavioral facility. Enrollees are eligible for a maximum of [thirty (30)] days of inpatient behavioral health services annually. (9) [Ten (10)] dollars for individual outpatient behavioral health services. Enrollees are eligible for a maximum of [thirty (30)] outpatient behavioral health visits annually. (10) [Five (5)] dollars for outpatient behavioral health group services. (11) The full cost of any nonemergency transportation. (E) Unless an enrollee meets the requirements for coverage as a chronically ill person pursuant to subsection O, paragraph 2, subdivision (D) of this section, an enrollee is not eligible to receive transplant services. (F) Medical service providers may withhold nonemergency medical services to enrollees who do not pay copayments in full at the time the service is rendered. (G) The [director] of the [health care cost containment system administration] shall require as a condition of a contract with any provider that a marketing plan be developed to reach people eligible pursuant to this section. (H) For the purposes of the demonstration project, the [health care cost containment system administration] shall establish the total premium costs and shall establish the portion of the monthly premium that each enrollee shall pay based on the following: (1) The enrolleeÂ&#x2019;s household gross income and household size. An enrollee with an annual gross household income of up to and including [two (200)] hundred percent of the federal poverty guidelines shall pay a portion of the premium shall that does not exceed [four (4)] percent of the enrolleeÂ&#x2019;s household gross income. An enrollee who is chronically ill pursuant to subsection O, paragraph 2, subdivision (D) of this section and who has an annual gross household income above [two hundred (200)] percent of the federal poverty guidelines but not more than [four hundred (400)] percent of the federal poverty guidelines shall pay the full premium established by the [administration.] (2) The total amount of money available in the premium sharing demonstration project fund established by [insert citation.] The total amount of state money that may be spent in any fiscal year by the [administration] for the premium sharing demonstration project shall not exceed the amount appropriated or authorized by [insert citation.] (3) The [administration] shall establish actuarially sound capitaSuggested State Legislation - 215

Premium Sharing 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155

tion rates. The [administration] may adjust the initial capitation rates, except that any increase exceeding [ten (10)] percent of the established rate must first be reviewed by the [oversight committee.] (I) Enrollees shall pay the required enrollee premium payment and full copayment charges established by the [administration.] (J) On implementation of the federal waiver for eligibility based on [one hundred (100)] percent of the federal poverty level by the federal Health Care Financing Administration, enrollees in the premium sharing demonstration project who have incomes that are less than [one hundred (100)] percent of the federal poverty guidelines as published annually by the United States Department of Health and Human Services shall not be eligible for the premium sharing demonstration project and shall reapply for the plan implemented after the waiver is approved. (K) On implementation of a state children s health insurance program established pursuant to Title XXI of the Social Security Act, any child who is eligible for that program is not eligible for the premium sharing demonstration project. Eligibility for the premium sharing demonstration project shall continue for not more than [ninety (90)] days after the implementation date of the state children s health insurance program to allow the enrollee sufficient time to submit an application and to be determined eligible for that program. If the enrollee does not apply for the state children s health insurance program, eligibility for the premium sharing demonstration project terminates [ninety (90)] days after the implementation date of the state children s health insurance program. (L) Pregnancy shall not be considered a pre-existing condition for the purposes of refusing services. (M) Once a participant is determined eligible, the participant s family members are also considered eligible. Participants shall enroll all family members who are not currently insured and who have not been insured for the preceding [six (6)] months unless the household member is eligible pursuant to subsections J or K of this section. (N) Notwithstanding any other law, health care cost containment system health plans that participate in the premium sharing demonstration project and [health care group] for the purposes of the demonstration shall not be subject to the provisions of the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191), but participants in the premium sharing demonstration project shall be allowed to use enrollment in the premium sharing demonstration project as creditable coverage as defined in the Health Insurance Portability and Accountability Act of 1996. (O) For the purposes of this section: (1) Chronic disease means: (a) Alpha-1-antitrypsin deficiency. (b) Amyotrophic lateral sclerosis. (c) Cardiomyopathy.

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(d) Chronic liver disease. (e) Chronic pancreatitis. (f) Chronic rheumatoid arthritis. (g) Congenital heart disease. (h) Cystic fibrosis. (i) Growth hormone deficiency. (j) Hematologic cancer. (k) Hemophilia. (l) History of any solid organ transplant. (m) Acquired immunodeficiency syndrome. (n) Hodgkins disease. (o) Metastatic cancer. (p) Multiple sclerosis. (q) Muscular dystrophies. (r) Pulmonary hypertension. (s) Sickle cell disease. (2) Â&#x201C;EnrolleeÂ&#x201D; means a resident of this state and of either [one (1)] of [two (2)] urban counties with a population of more than [five hundred thousand (500,000)] people or of [one (1)] of [two (2)] rural counties with a population of less than [five hundred thousand (500,000)] people chosen by the administration to participate in the demonstration project who is a citizen of the United States or who meets the alienage requirements that are established pursuant to [insert citation,] and who: (a) Has been screened pursuant to subsection c of this section and is ineligible for services pursuant [insert citation.] (b) Submits an application for the premium sharing demonstration project as prescribed by the [health care cost containment system administration.] (c) Except as provided in subdivision (d) of this paragraph, has an annual household gross income that does not exceed [two hundred (200)] percent of the federal poverty guidelines as published annually by the United States Department of Health and Human Services. (d) Has an annual household gross income of between [zero (0)] and [four hundred (400)] percent of the federal poverty guidelines and who has at least [one (1)] chronic disease as defined in this subsection. If the chronic disease is caused by alcohol, drug or chemical addiction, the applicant is not eligible for the premium sharing demonstration project. A person who is chronically ill and who has an annual gross household income above [two hundred (200)] percent of the federal poverty guidelines shall have been eligible for health care services pursuant to [insert citation,] for [twelve (12)] consecutive months immediately preceding the date of application for the premium sharing program. A direct state subsidy shall not be contributed to share in the cost of any enrollee whose gross income exceeds [two hundred (200)] percent of the federal poverty guidelines. Suggested State Legislation - 217

Premium Sharing 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 228 229 230 231 232 233 234

(e) Demonstrates that the enrollee has not been insured by a health care insurer or [health care group] at any time during the [six (6)] months preceding the date of application. this subdivision does not apply to any applicant who is no longer eligible pursuant to [insert citation,] or to a person who is chronically ill and who has an annual household gross income above [two hundred (200] percent of the federal poverty guidelines but not more than [four hundred (400)] percent of the federal poverty guidelines. (f) Agrees to share in the cost of the premiums established by the [administration] pursuant to subsection H of this section. (g) Agrees to cooperate fully with the administration in the determination of household income for the purposes of determining gross income and premium costs. (h) Is not eligible for Medicare benefits through Title XVIII of the Social Security Act or Supplemental Security Income payments associated with blindness or disability. (i) Is ineligible for coverage through the Veterans Administration for the condition or conditions in question. (j) Has not been found by a governmental agency or a court of law to have committed an act of fraud or abuse with respect to any cash or in-kind benefit program including temporary assistance to needy families, general assistance, food stamps, a state Medicaid program or any state or county sponsored medical assistance program. (k) Is not eligible for benefits under Title XIX of the Social Security Act. however, women who are eligible for the Sixth Omnibus Budget Reconciliation Act extension may apply for the premium sharing demonstration project. (3) Federal poverty guidelines means the guidelines published annually by the United States Department of Health and Human Services. (4) Health care group includes the separate organization established pursuant to [insert citation.] (5) Plan means the federal waiver for eligibility based on one hundred percent of the federal poverty level and as approved by the federal Health Care Financing Administration. (6) Population means the population according to the most recent United States decennial census.

1 2 3 4 5 6 7

Section 3. [Premium Sharing Demonstration Project; Enrollment Cap.] The [health care cost containment system administration] shall limit enrollment in the premium sharing demonstration project established pursuant to section 3 of this Act so that annual premium expenditures by the state for the project do not exceed the annual appropriation to the project pursuant to [insert citation.] The [administration] shall determine the number of demonstration project participants that can be enrolled. The [admin-

218 - The Council of State Governments

Premium Sharing 8 9 10

istration] shall limit the total number of all chronically ill enrollees in the premium sharing demonstration project to [two hundred (200)] people, subject to the availability of money.

Section 4. [Severability.] [Insert severability clause.]

Section 5. [Repealer.] [Insert repealer clause.]

Section 6. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 219

Prisoner Litigation Reform This Act requires state prisoners to exhaust administrative remedies prior to bringing any lawsuit based upon prison conditions under any state statute or constitutional provision. It permits a court to dismiss a prisoner s lawsuit without exhaustion of administrative remedies if it is frivolous, malicious, fails to state a claim or seeks monetary relief against an immune defendant. The Act prohibits a prisoner from filing another lawsuit based on prison conditions if the prisoner has on three or more occasions filed a frivolous lawsuit. It permits the prisoner to file an action if approved by a judge or if the prisoner is in imminent danger of serious physical injury. The law requires that any monetary award to a prisoner must be used to satisfy any pending court-ordered payment before payment to the prisoner. The Act limits attorney fees that may be awarded against a defendant in a prisoner lawsuit to an amount: Actually incurred in proving a violation of the prisoner s rights; Proportionately related to the relief ordered or incurred in enforcing the award; and Based upon an hourly rate of not more than 150% of the amount paid to court-appointed counsel. The law requires that an amount not to exceed 25% of any monetary judgment awarded in a prisoner lawsuit be used to satisfy any award of attorney fees entered in the lawsuit. If a state prisoner is to file an action or appeal without prepaying the filing fee, the prisoner must: File verified statements of the prisoner s trust fund account for the preceding 6 months; If the prisoner has ten dollars or more in his or her trust fund account, to make an initial payment in accordance with the court s order; and To make continuing monthly payments equal to 20% of the previous month s deposits in the prisoner s trust fund account until the filing fee is paid in full. Submitted as: Colorado CH 093, Laws of 1998 Enacted into law, 1998.

Suggested Legislation (Title, enacting clause, etc.) 220 - The Council of State Governments

Prisoner Litigation Reform 1 2 1 2 3 4 5 6 7 8 9 10 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1 2 3 4 5 6 7 8 9 10 11 1 2

Section 1. [Short Title.] This Act may be cited as an Act Concerning Prisoner Lawsuits. Section 2. [Definitions.] As used in this Act: (1) Civil action means the filing of a complaint, petition, writ, or motion with any court within the state, including any appellate court; except that civil action does not include any criminal action or an action for Habeas Corpus under [insert citation.] (2) Detaining facility means any state correctional facility, as defined in [insert citation,] including the youthful offender system, any private correctional facility housing state prisoners pursuant to [insert citation], or any local jail, as defined in [insert citation,] or community corrections program, established in [insert citation.] A detaining facility shall not include any juvenile detention facility that detains only juveniles. Section 3. [Exhaustion of Remedies.] (1) No inmate shall bring a civil action based upon prison conditions under any statute or constitutional provision until all available administrative remedies have been exhausted in a timely fashion by the entity operating the detaining facility and inmate. For purposes of this subsection, an inmate shall be considered to have exhausted all available administrative remedies when the inmate has completed the last step in the inmate grievance process as set forth in the regulations promulgated for the detaining facility. (2) Notwithstanding subsection (1) of this section, if a court finds that a claim filed by an inmate is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from monetary relief, a court may dismiss the claim without first requiring exhaustion of administrative remedies. Section 4. [Successive Claims.] (1) No inmate who on [three (3)] or more occasions has brought an action based upon prison conditions that has been dismissed on the grounds that it was frivolous, malicious, failed to state a claim upon which relief may be granted, or sought monetary relief from a defendant who is immune from such relief, shall bring a civil action based upon prison conditions under any statute or constitutional provision. (2) Notwithstanding subsection (1) of this section, an inmate may file a suit with the written permission of a judge of the court in which the action is to be filed or if the inmate is in imminent danger of serious physical injury. Section 5. [Court-Ordered Payment.] Any compensatory damages Suggested State Legislation - 221

Prisoner Litigation Reform 3 4 5 6 7 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11

awarded to an inmate in connection with a civil action brought against any federal, state, or local jail, prison, or facility or against any official or agent of a jail, prison, or facility, after deduction for any award of attorney fees pursuant to section 6 (1) (c), shall be paid directly to satisfy any outstanding court-ordered payments pending against the inmate, including but not limited to restitution or child support. The remainder of the award after full payment of all pending court orders shall be forwarded to the inmate. Section 6. [Assessment of Costs and Attorney Fees - Review of Inmate Spending from Account - Recovery of Costs from Inmate Accounts - Alternative Sanctions - Continuing Garnishment Authorized.] (1) (a) In any action based upon prison conditions brought under any statute or constitutional provision, if attorney fees are recoverable pursuant to any state or federal statute, no attorney fees shall be awarded to an inmate, except to the extent that: (i) The fees were directly and reasonably incurred in proving an actual violation of the inmateÂ&#x2019;s rights protected by the Constitution or statute; and (ii) The amount of the fees is proportionately related to the courtordered relief for the violation or the fees were directly and reasonably incurred in enforcing the relief ordered for the violation. (b) No award of attorney fees under this section shall be based on an hourly rate in excess of [one hundred fifty (150)] percent of the hourly rate paid to court-appointed counsel in the district in which the action was filed. (c) Whenever a separate monetary judgment is awarded in an action in which attorney fees are awarded under this section, a portion of the judgment not to exceed [twenty-five (25)] percent shall be applied to reduce the amount of attorney fees awarded against the defendant. (d) Nothing in this section shall prohibit an inmate from entering into an agreement to pay an attorney fee in excess of the amount authorized in this section, if the fee is paid by the individual rather than by a defendant. Section 7. [Filing Fees.] (1) An inmate seeking to bring a civil action or appeal a judgment in a civil action without prepayment of fees, in addition to filing any required affidavit, shall submit a copy of the inmateÂ&#x2019;s trust fund account statement for the [six (6)] month period immediately preceding the filing of the complaint or notice of appeal, certified by an appropriate official at the detaining facility. If the inmate account demonstrates that the inmate has sufficient funds to pay the filing fee, the motion to proceed as a poor person shall be denied. (2) Any inmate who is allowed to proceed in the civil action as a poor

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Prisoner Litigation Reform 12 13 14 15 16 17 18 19 20 21 1 1 1

person shall be required to pay the full amount of the filing fee in the following installments: (a) If the inmate has [ten (10)] dollars or more in his or her inmate trust fund account, make an initial partial payment in accordance with the order of the court; and (b) Make continuing monthly payments to the court equal to [twenty (20)] percent of the preceding monthÂ&#x2019;s deposits in the inmateÂ&#x2019;s trust account until the fee is paid in full. (3) In no event shall an inmate be prohibited from filing a civil action or appealing a civil or criminal judgment because the inmate has no assets and no means by which to pay the initial partial payment. Section 8. [Severability.] [Insert severability clause.] Section 9. [Repealer.] [Insert repealer clause.]

Suggested State Legislation - 223

Section 10. [Effective Date.] [Insert effective date.]

Private School Tuition; Tax Credit

This Act establishes criteria for $500 tax credit for voluntary contributions to school-tuition organizations. School-tuition organizations are charitable organizations that devote at least 90 percent of their annual revenue to educational scholarships or tuition grants to children to allow them to attend any qualified school of their parents choice. Submitted as: Arizona CH 48, Laws of 1997 Enacted into law, 1997.

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(Title, enacting clause, etc.) Section 1. [Short Title.] This Act may be cited as the Private School Tax Credit Act. Section 2. [Additions to Definitions of Gross Income - State Income Tax.] In computing adjusted gross income, the following amounts shall be added to gross income: (1) Any amount deducted pursuant to section 170 of the Internal Revenue Code representing contributions to a school tuition organization for which a credit is claimed under sections 3 or 4 of this Act. Section 3. [Credit for Voluntary Contributions to School Tuition Organization; Definitions.] (A) For taxable years beginning from and after [December 31, 1997,] a credit is allowed against the taxes imposed by [insert citation] for the amount of voluntary cash contributions made by the taxpayer during the taxable year to a school tuition organization, but not exceeding [five hundred (500)] dollars in any taxable year. The [five hundred (500)] dollar limitation also applies to taxpayers who elect to file a joint return for the taxable year. A husband and wife who file separate returns for a taxable year in which they could have filed a joint return may each claim only [one-half (1/2)] of the tax credit that would have been allowed for a joint return. (B) If the allowable tax credit exceeds the taxes otherwise due under [insert citation] on the claimant s income, or if there are no taxes due under [insert citation,] the taxpayer may carry the amount of the claim not used to offset the taxes under [insert citation] forward for not more than [five (5)]

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consecutive taxable years income tax liability. (C) The credit allowed by this section is in lieu of any deduction pursuant to section 170 of the Internal Revenue Code and taken for state tax purposes. (D) The tax credit is not allowed if the taxpayer designates the taxpayer s donation to the school tuition organization for the direct benefit of any dependent of the taxpayer. (E) For purposes of this section: (1) Qualified school means a nongovernmental primary or secondary school in this state that does not discriminate on the basis of race, color, sex, handicap, familial status or national origin and that satisfies the requirements prescribed by law for private schools in this state on [January 1, 1997.] (2) School tuition organization means a charitable organization in this state that is exempt from federal taxation under section 501 (c) (3) of the Internal Revenue Code and that allocates at least [ninety (90)] percent of its annual revenue for educational scholarships or tuition grants to children to allow them to attend any qualified school of their parents choice. In addition, to qualify as a school tuition organization the charitable organization shall provide educational scholarships or tuition grants to students without limiting availability to only students of one school. Section 4. [Tax Credit; Public School Fees; Definition.] (A) For taxable years beginning from and after [December 31, 1997,] a credit is allowed against the taxes imposed by [insert citation] for the amount of any fees paid by a taxpayer during the taxable year to a public school located in this state for the support of extra curricular activities of the public school, but not exceeding [two hundred (200)] dollars. (B) The [two hundred (200)] dollar limitation also applies to taxpayers who elect to file a joint return for the taxable year. A husband and wife who file separate returns for a taxable year in which they could have filed a joint return may each claim only [one-half (1/2)] of the tax credit that would have been allowed for a joint return. (C) The credit allowed by this section is in lieu of any deduction pursuant to section 170 of the Internal Revenue Code and taken for state tax purposes. (D) If the allowable tax credit exceeds the taxes otherwise due under [insert citation] on the claimant s income, or if there are no taxes due under [insert citation,] the taxpayer may carry the amount of the claim not used to offset the taxes under [insert citation] forward for not more than [five (5)] consecutive taxable years income tax liability. (E) For purposes of this section, extra curricular activities means school sponsored activities that require enrolled students to pay a fee in order to participate including fees for: Suggested State Legislation - 225

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1. Band uniforms. 2. Equipment or uniforms for varsity athletic activities. 3. Scientific laboratory materials. Section 5. [Department of Revenue; Report of Fiscal Impact.] The [director] of the [Department of Revenue] shall submit a report to the [governor,] the [president of the Senate] and the [speaker of the House of Representatives] regarding the fiscal impact of the tax credit provided for donations to school tuition organizations on [July 1, 1999.] Section 6. [Severability.] [Insert severability clause.] Section 7. [Repealer.] [Insert repealer clause.]

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Section 8. [Effective Date.] [Insert effective date.]

Quarry Operation, Reclamation and Safe Closure This Act establishes procedures to regulate quarries, from notification of operation to reclamation of closed quarries. Submitted as: Arkansas Act 1116 of 1997 (SB 397) Enacted into law, 1997.

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(Title, enacting clause, etc.) Section 1. [Short Title.] This Act may be cited as the Quarry Operation, Reclamation and Safe Closure Act. Section 2. [Definitions.] As used in this Act: (a) Active means a quarry wall where extraction is occurring or is planned to occur. (b) Affected Land means the area of land to the nearest acre, where the quarrying of stone, industrial activity, and the stockpiling of topsoil and spoil occur. (c) Citation means a written warning of a violation that may be accompanied by a fine when given [two (2)] times for the same violation. (d) Commission means the [Pollution Control and Ecology Commission] or such [Commission] or other entity as may lawfully succeed to the powers and duties of the [Commission.] (e) Default means an operation that has uncorrected violations of the requirements of this Act which allows the [Department] to forfeit the bond to have the site reclaimed as per the reclamation plan. (f) Department means the [Department of Pollution Control and Ecology,] or such [Department] or other entity which may lawfully succeed to the powers and duties of the [Department.] (g) Director means the executive head and active administrator of the [Department.] (h) Exhausted Quarry means a quarry where the stone is depleted. (i) Final Floor means the bottom surface created in a quarry. (j) Final Wall means the last wall created in a quarry. (k) Inactive Status means the period of time a quarry is inactive or Suggested State Legislation - 227

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temporarily shut down. (l) Notification of Intent is the operator s proper notification to the [Department] of the Operator s intent to open a quarry, to temporarily close a quarry, to reactivate a quarry, and to shut down an exhausted quarry. (m) Notification in Process means that a Notification of Intent is on file and incomplete. (n) Operator means any person engaged in or controlling a quarrying operation. (o) Quarry means an excavation or pit from which stone is removed. (p) The Quarry Rim means the top surface of the quarry behind the wall from which has been removed the topsoil and spoil. (q) Reclamation Plan is a plan presented to the [Department] by an Operator detailing the reclamation and revegetation of lands affected by quarrying both contemporaneously and after the quarry is exhausted, and required by this Act. (r) Start Up means the date an Operator begins site preparation for quarrying. (s) Fine means a penalty for non-compliance which may accompany a second citation, except as provided in other sections of this Act for specific violations. Fines are not retroactive, and the amounts cannot be changed except by legislative action. (t) Fee means the notification or annual operating payment made by the Operator to the [Department.] The amount cannot be changed except by legislative action. This fee will be payable on or before [July 1,] for all operating quarries in the current calendar year. (u) Spoil means the unconsolidated boulders, soil and other naturally occurring materials which lie above a deposit of quarriable stone, which must be excavated from above a deposit so that extraction can begin. (v) Topsoil means the top strata of soil normally associated with the growth of vegetation. It is generally free of boulders, cobbles or other floating rock and exhibits the growing properties normally associated with, at a minimum, the pasturing of cattle. Section 3. [General Notification.] (a) It shall be unlawful for any Operator to engage in a quarrying operation without first submitting to the [Department,] a Notification of Intent to Quarry, or a Notification of Reactivated Quarry, in accordance with this Act. The submittal, with returned receipt, shall enable the operator to begin or continue quarrying as long as the required reclamation bond is in force, and proof of public notification is included. An Operator shall be deemed to be quarrying from the time he begins start up until reclamation is completed at the exhausted quarry. (b) Only new quarries or any land purchased or leased for a quarry after [January 1, 1997] will be subject to this Act.

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(c) There will be no requirements for a Notification of Intent to be filed with the [Department] for temporarily closed, or exhausted quarries in existence prior to [January 1, 1998.] These quarries will be exempt from the requirements of this Act unless reactivated. (d) New Notification of Intent to Quarry shall be required if a change in the majority ownership of an Operator occurs. (e) Representatives of the [Department] may make regular site visits to quarry operations, as necessary, to determine compliance with the requirements of the operator s notification. On these visits the Operator will make his quarry operation accessible to the [Department.] (f) Upon receipt of Notifications of Intent, the [Department] will have [ninety (90)] days to respond to the Operator by certified mail to errors and/ or omissions in the notifications. (g) On completion of a notification, the [Department] will issue the operator a notice, which will be posted on quarry premises at all times when quarry is in operation. The notice will state that the company has completed the requirements, as set out by this Act, and has the unconditional authorization to quarry at this site, so long as the quarry is in compliance with all laws and regulations for up to [five (5)] years. (h) The [Department,] upon finding the Operator to be out of compliance with the requirements of his notification, may issue Warnings, Citations and Notices of Default to the Operator. (i) All filings and other communication will be by certified mail. (j) Operator will give notice to the public in a local newspaper of general circulation that he intends to open or reactivate a quarry. Said notification will be part of an Operator s intent and will be published in the newspaper at the same time the intent is filed with the [Department.] Said notification will indicate the approximate location of quarry, the date of startup and the date Operator plans to temporarily close, if applicable, as well as Operator s name, address, phone number and contact person. Proof of publication shall be provided to the [Department] in the operator s notice of intent. The Operator will keep responses from the public on file for [two (2)] years. The [Department] will forward responses it receives to the Operator. The Operator will keep a record of all actions taken resulting from public responses for [two (2)] years, notifying the [Department] of each action. Section 4. [Notification of Intent to Quarry; Filing and Composition.] (a) Except for operators of quarries excluded by Section 3(b), any operator desiring to engage in quarrying shall complete a Notification of Intent to Quarry which, when submitted to the [Department] by certified mail, will entitle said Operator to conduct quarry operations. For all active quarries, as of [January 1, 1998,] a Notification of Intent must be on file, or in process, at the [Department.] For all new quarries to be opened after [January 1, 1998,] Notification of Intent must be on file, or in process, at the Suggested State Legislation - 229

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[Department] before the Operator may begin quarry operations. The notification shall be accompanied by the payment of a [two hundred and fifty dollar (250.00)] fee. The submittal shall be an agreement between the Operator and the [Department.] The Operator shall pay an annual fee to the [Department] in the amount of [twenty five dollars (25.00)] per acre of affected land, not to exceed [one thousand dollars (1,000.00)] per quarry. (b) The Â&#x201C;Notification of IntentÂ&#x201D; shall include [one (1)] copy of the following. (1) The Company name, Officers, majority of Ownership, Onsite Superintendents, addresses, name of quarry, phone numbers, anticipated start up and shut down dates. (2) The following Right to Quarry, signed and notarized: I, the Operator of Quarry Name located at legal description in County, have the legal right by deeds, leases or other instruments to conduct quarry operations for commercial and other purposes at this location. I will comply with all state and federal laws and regulations in this operation. _______________________________ Company Name _______________________________ President _______________________________ Secretary (c) A Location Map which contains the following: (1) 7.5 minute topographic quadrangle map as prepared by the U.S.G.S. (2) Clearly marked legal boundaries of area to be quarried. (3) Clearly defined entrances onto pubic roads. (4) Present use of property. (5) Legal description. (d) A [five (5) year] Quarry Operation Map which contains the following: (1) Scaled dimensions (i.e., 1:200). (2) Approximate property boundaries. (3) The location and identification of all affected lands to the nearest acre, anticipated for up to [five (5)] years. (4) All pertinent man-made and natural structures including the plant location and the location of safeguarding items as required by Section 10. (5) Location of topsoil and spoil stockpiles. (6) Entrances onto public roads. (7) Areas of natural rock exposure (no topsoil or spoil).

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(e) A Notification of Intent to Reclaim Quarry. I, Operator of Quarry Name located at legal description in County, agree to reclaim said described quarry in conformance with the [state] Quarry Operation, Reclamation and Safe Closure Act, when the quarry is exhausted. _______________________________ Company Name _______________________________ President _______________________________ Secretary (f) The Operator s Financial plan for Reclamation will include: (1) Estimate of reclamation cost. (2) An acceptable bond, or substitute security. (g) All operators will have [sixty (60)] days to correct any errors or omissions to a Notification of Intent if notified by the [Department] that a Notification of Intent is incomplete. (h) A fine of not more than [one hundred dollars (100.00)] per day, per citation, may be levied against an Operator whose Notification of Intent is not completed and on file in the [Department] within [sixty (60) days] after receipt of notice by the [Department] of errors and omissions in the first filing. The maximum fine is [five thousand dollars (5,000.00).] (i) A fine of not more than [one hundred dollars (100.00)] per day, per citation, may be levied against Operators which are found to be out of compliance with these requirements. The maximum fine is [five thousand dollars (5,000.00).] Section 5. [Notification of Temporarily Closed Quarry.] (a) Quarry sites in which operations are only occasionally conducted, in which the Operator anticipates future quarry activity, can be shut down on a temporary basis. If so, the Operator will file a Notification of Temporarily Closed Quarry with the [Department,] within [thirty (30)] days after an operation is closed. Full reclamation will not be required until no further additional quarrying is anticipated, or the quarry is exhausted. All operational safeguards, as described in this Act, will remain in place as required until the quarry is exhausted. The Notification of Temporarily Closed Quarry will contain the following: (1) Same information as Notification of Intent per Section 4(a). (2) Right to Temporarily Close as follows: I, Operator of Quarry Name located at legal description in County, have the legal right by deeds, leases or other instruments to temporarily close this quarry operation until such time as it becomes necSuggested State Legislation - 231

Quarry Operation, Reclamation and Safe Closure essary to reactivate this operation. I will comply with all state and federal laws and regulations during this temporary closure and inactive status.

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(b) When an Operator closes a quarry, and fails to file a Notification of Temporarily Closed Quarry with the [Department] within [sixty (60)] days, the [Department] may levy a fine of not more than [one hundred dollars (100.00)] per day by citation until said notification is received. The maximum fine is [five thousand dollars (5,000.00).] (c) If a Notification of Temporarily Closed Quarry is not received within [ninety (90) days] of the issuance of the citation, the [Department] may declare that the quarry is in default and require Operator to reclaim the site as per the bonding and reclamation requirements or the [Department] may forfeit the bond and issue a contract to have the site reclaimed as per the reclamation requirements.

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Section 6. [Notification of Reactivated Quarry.] Prior to resuming operation in a temporarily closed quarry, an Operator will notify the [Department] by certified mail with a Notification of Reactivated Quarry. This notification will consist of the resubmittal of the Notification of Intent along with any modifications required, necessary by changed conditions at the quarry site.

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Section 7. [Notification; Refiling.] Every [five (5)] years all Notifications of Intent to Quarry, and of Temporarily Closed Quarry must be refiled with the [Department] by certified mail on or before the Operator s anniversary date, with any modifications made necessary by; changed conditions in the quarry site, such as changes in the affected acreage, majority ownership of the Operator, or changes in public roads and man-made structures adjacent to the quarry site, or new technology. For failure to refile a Notification of Intent or Notifications of Temporarily Closed Quarry, [Departmental] enforcement procedures, citations and fines will be the same as for Section 5.

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Section 8. [Notifications of Exhausted Quarry.] (a) When a quarry becomes exhausted, the Operator will notify the [Department] by registered mail that the quarry is an exhausted quarry. This notification will contain the following: (1) Updated information as required for the Notification of Intent per section 4(a). (2) Beginning date of quarry reclamation must be within [six (6)] months of Notification of Exhausted Quarry . (3) Anticipated date reclamation will be completed (all earthwork and revegetation must be completed within the specified time). If revegeta-

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tion is not approved, Operator will have another year to complete seeding, as required. (4) Quarry Reclamation Map should contain the following: (i) Identification of all planned roads, water impoundments, final walls, final floors, unconsolidated slopes, quarry rims, areas to be revegetated, berms, other man-made structures and unaffected areas. (ii) Map shall show planned reclamation according to the requirements of the reclamation plan. (iii) Affected land acreage to be reclaimed will be shown to the nearest acre. (b) If the Operator fails to notify the [Department] of this change of status, the [Department] will notify Operator by citation. The Operator will then have [sixty (60)] days, to file said notification and commence with plans to reclaim quarry site as per the requirements of this Act. (c) If Operator fails to file notification within the required [sixty (60)] days, the [Department] may levy a fine of [one hundred dollars (100.00)] per day by citation to the Operator until notification is received by the [Department.] The maximum fine is [five thousand dollars (5,000.00).] (d) If Operator fails to notify the [Department] within [sixty (60)] days, and the fine is in effect, then the [Department] may declare the Operator in default and order Operator to begin reclamation as required or the [Department] may forfeit bond and issue a contract to have the site reclaimed as per the reclamation plan.

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Section 9. [Reclamation.] (a) When the quarry is exhausted, the planned reclamation of all affected lands at the quarry site will be completed by the Operator, his subcontractor, or by the [Department] once the bond has been forfeited. (b) The minimum reclaimed condition of the exhausted quarry will be as a lake, pasture, timberland or wetlands, or a combination thereof. Where pre-affected lands consist of natural rock outcrops, floors, walls and ledges, where no topsoil or minimal spoil exists, post-reclaimed land of approximately the same area may be left for self revegetation, within the total affected land to be reclaimed. Acreage of the pre-affected lands will be calculated to the nearest acre. Exhausted highwalls and safety benches may be left for self reclamation. (1) All equipment, tools, man-made structures and debris will be removed from affected lands, or disposed of on property in a safe manner by mutual agreement between the Operator and the landowner. Said agreement will be on file at OperatorÂ&#x2019;s offices and sent to the [Department] with notification of exhausted quarry. (2) If uncovered spoil, earth or rock formations cause acidic drainage, all acid-forming materials will be covered with at least [three (3)] feet of spoil and available topsoil, with topsoil in the top [one (1) foot,] and seeded Suggested State Legislation - 233

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as required by this Act. (3) Available topsoil and spoil removed during quarrying will be stockpiled for use during reclamation. If either material is not available in quantities necessary for reclamation, then priority will be given to areas with acid forming materials in (2). If contemporaneous reclamation is ongoing, then the Operator may reclaim in areas of his own discretion. Thickness of spoil may be varied, but in no case will be combined thickness be less than [six (6)] inches. Spoil and topsoil which are surplus to full reclamation may be disposed of at the discretion of the Operator. No topsoil or dirt is required to be hauled from another location to the quarry site. (4) Lime, fertilizer and seeding will be completed as necessary to sustain growth over [seventy-five (75)] percent of the affected area, or a complete reseeding of bald spots will be required. (5) If revegetation during reclamation is to be accomplished by planting of trees, the planting guideline of the [State Forestry Commission] shall be complied with. A [fifty (50] percent coverage is required after [two (2)] years. Otherwise, bald spots will be replanted. (6) All erosion control will be covered under Operator s Stormwater Pollution Prevention Plan. (7) Site process water quality, storage, handling and discharge will be covered under the Operator s NPDES permit. (8) Quarry site reclamation must be completed through the first seeding within [one (1)] year for quarry sites of less than [fifty (50)] acres, within [two (2)] years for quarry sites of more than [fifty (50)] acres and less than [one hundred (100),] and within [three (3)] years for quarry sites of more than [one hundred (100)] acres and less than [two hundred (200).] This time requirement for sites larger than [two hundred (200)] may be modified, at the discretion of the [Department,] upon agreement with the Operator. (9) If an Operator fails to begin reclamation during the first [six (6) months] after a quarry is exhausted, the [Department] will notify the Operator by citation of the above violation. If an Operator then fails to begin reclamation within the [sixty (60)] days after receiving said notification, the [Department] may then issue a second citation. The second citation will be accompanied by a fine of not more than [fifty dollars (50.00)] per day until reclamation begins. If Operator s reclamation effort does not begin within [sixty (60)] days of the second citation, and the fine is in force for that period, then the [Department] will notify Operator that the operation is in default. The [Department] will then use the proceeds of the Operator s forfeited bond to have the quarry site reclaimed as per the reclamation plan.

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Section 10. [Safeguards.] The quarry operator will take the following measures to safeguard the operations for the benefit of neighbors and other

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citizens and to restrain trespassers from entering onto the quarry or plant site. (a) One, or a combination of the following will be installed around the quarry and plant site to compliment natural barriers to trespassing as required. (1) A minimum [four (4)] foot high, [four (4)] strand, barbed wire fence boundary attached to steel posts. (2) A [five (5)] foot high earth and/or rock berm with slopes steeper than [1.5 to 1] and a minimum top width of [five (5)] feet. (3) A protective barrier of boulders, concrete or other objects capable of discouraging pedestrian or vehicular traffic. (b) Brightly colored warning signs [(blaze orange is recommended)] will be installed every [three hundred (300)] feet in clear view. (c) Barriers or lockable gates, capable of withstanding normal vandalism, are to be installed at all quarry site entrances. During temporary closure, and after full reclamation of an exhausted quarry, barriers of rock or securely locked gates will be installed at all entrances on safety benches and haul roads so that no traffic or dumping can occur on the affected lands or in the quarry itself. (d) After [January 1, 1998,] no active quarry wall will be closer than [fifty (50)] feet to a public road right of way, where the quarryÂ&#x2019;s adjacent floor elevation is at or above the elevation of the right of way of the public road at the property line. Where active quarry floors are below said right of way, quarrying will be permitted only after a vegetated berm, a minimum of [ten (10)] feet high, [eight (8)] feet wide at the crest and with [one-and-ahalf (1 1/2) to one (1)] slopes is installed for public safety. (e) After [January 1, 1998,] no active quarry wall will be closer than [fifty (50)] feet from any private property line unless written permission is given by the adjacent property owner. Permission will be on file at OperatorÂ&#x2019;s office and a copy will be sent to the [Department.] (f) Where truck traffic to and from the quarry site entrance creates a public safety nuisance, because of fugitive dust, the Operator will take the appropriate measures to treat the roadbed for dust control in the vicinity of the quarry entrance. (g) Blasting will be regulated under present MSHA or state labor codes. (h) Hazardous wastes will be regulated under the present [Hazardous Waste Codes.] (i) Active quarry and plant sites will have until [January 1, 1998] to comply with the requirements of this section, except for Subsection (f). Requirements of Subsection (f) are to be in force by [July 1, 1997.] (j) If the [Department] finds the Operator to be out of compliance with any of the requirements of subsection (a), (b), and (c) of this section, a citation will be given to the Operator to comply within [ninety (90) days.] If Operator fails to comply within the [ninety (90)] days time requirement, or Suggested State Legislation - 235

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shows no effort to comply, the [Department] may levy by citation a fine of not more than [one hundred dollars (100.00)] per day until Operator complies with said requirements. The maximum fine is [five thousand dollars (5,000.00).] (k) Any Operator quarrying in violation of subsections (d) and (e) of this section will be subject to an immediate assessment of a fine of not more than one [hundred dollars (100.00)] per day and/or a Shut Down Order by the [Department.] Said Order will stay in effect at the discretion of the [Department] until Operator is no longer in violation.

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Section 11. [Complaints.] (a) The Operator is required to document and respond to complaints by neighbors and citizens as they relate to the requirements of this Act. A record of the complaints and responses will be kept on file, at the quarry office or company office, for a minimum of [two (2)] years and sent to the [Department.] (b) Any complaints received by the [Department] as they relate to this Act, will be forwarded to the Operator. Operator s response will be kept on file for future Departmental review, at the quarry office or the company office, for a minimum of [two (2)] years. (c) The [Department] shall investigate complaints by neighbors and citizens to determine if violations of this Act have occurred.

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Section 12. [Bonds.] (a) In order to assure that all reclamation is completed as required and within a reasonable length of time, the Operator shall submit a bond, or substitute security, used specifically for the quarry described in the legal description of the Notification of Intent. Said bond, or substitute security shall be in force prior to the Operator commending a new or reactivated quarry operation and in force for all active quarry operations by [January 1, 1998.] (b) As of [January 1, 1998,] the reclamation bond required for acceptance of an operator s Notice of Intent to open a quarry, or to reactivate a quarry, will be [one thousand dollars (1,000)] per acre of affected land. The face value of the bond will be evaluated every [five (5)] years by the operator and a representative of the [Department.] In the event it is determined that the bond or substitute security are inadequate, the surety will be notified, and the bond limits, or amount of security, will be increased. If said security is determined to be surplus, then the amount required will be decreased. (c) Bonding, or substitute security may be incrementally increased based on the annual acreage to be affected, but must be sufficient in total to fund full reclamation as required by this Act. (d) Bonding or substitute security, shall be incrementally decreased as

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reclamation is completed. When final reclamation is completed, remaining bond, or substitute security, will be released to the Operator. (e) The Operator may submit any of the following three (3) types of bonds, or substitute security: (1) A Surety Bond. (2) A Collateral Bond with supporting collateral consisting of Irrevocable Letters of Credit or Certificate of Deposit in favor of the [Department.] (3) A Self Bond with unencumbered right to certain property to be held by the [Department.] (i) Recommended bond forms shall be provided by the [Department.] A variation of the language in all but the Self Bond form may be acceptable, provided the requirements of the Act and this Code are incorporated and the [Department] approves the language. (ii) In the event Self Bonding is used, the following conditions apply: (I) The applicant must use the Self Bond form provided by the [Department.] (II) The Collateral to be offered must be appraised by a licensed appraiser approved by the Operator and the [Department.] (III) The Operator must have unencumbered ownership of the Collateral, and provide proof of such ownership to the [Department.] (IV) The value of the Collateral as bond will be [eighty (80)] percent of the fair market value of the Collateral as established by the appraiser. (V) Any Collateral that decreases in value due to usage, (i.e., rolling stock) will be not be acceptable. (VI) In the event the Collateral consists of real property, an environmental audit of the area must be provided to the [Department.] (VII) Where applicable, a lien will be filed against the Collateral until the affected area is reclaimed and released by the [Commission.]

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Section 13. [Hearings.] An operator may request and obtain an adjudicatory hearing and review by the [Commission] of any decision by the director to enforce the provisions of this Act, including any action to impose a civil penalty, stop quarrying activities or forfeit a bond. The decision of the [Commission] shall be final, and may be appealed by the operator to the circuit court of the county in which the quarry is located in accordance with state law.

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Section 14. [Distribution of Fees, Fines, and Forfeiture Amounts.] The [Department] shall collect fees, fines, and bond forfeiture amounts pursuant to this Act. These revenues, along with gifts, grants, donations and other Suggested State Legislation - 237

Quarry Operation, Reclamation and Safe Closure 4 5 6 7 8 9 10

funds received under this Act, including all interest earned, shall be deposited in the [Land Reclamation Fund] established by [A.C.A. 15-57-319.] The [Department] shall use these funds pursuant to this Act for contract awards for the reclamation of affected lands as required by this Act. When accumulated funds equal the product of [ten (10)] percent of the number of acres of affected lands times [one thousand dollars (1,000),] surplus funds shall be deposited into the State Treasury as general revenues.

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Section 15. [Severability.] If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

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Section 16.[Repealer.] All laws and parts of laws in conflict with this Act are hereby repealed.

Section 17. [Effective Date.] [Insert effective date.]

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Self-Employment Assistance This Act authorizes the state labor department to establish a pilot program to pay a self-employment assistance allowance in lieu of unemployment benefits to people who are trying to start their own businesses. The program would also offer such people self-employment assistance activities such as entrepreneurial training, business counseling and technical assistance. Submitted as: Pennsylvania PA 54, Laws of 1997 Enacted into law, 1997.

Suggested Legislation 1 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

(Title, enacting clause, etc.) Section 1. [Short Title.] This Act may be cited as The Self-Employment Assistance Program Act. Section 2. [Definitions.] The following words and phrases when used in this Act shall have the meanings given to them in this section unless the context clearly indicates otherwise: (1) Department. The [Department of Labor and Industry of the Commonwealth.] (2) Full-time basis. The devoting of such amount of time as is prescribed by the [Department of Labor and Industry,] on its own or in consultation with its designated service provider, to be necessary for a program participant to establish a business and become self-employed. (3) Program. The [Self-Employment Assistance Program] established in section 3 of this Act. (4) Program participant. An individual: (i) who is selected for participation in the program, at the discretion of the [Department of Labor and Industry,] from among individuals who are eligible for regular benefits and are identified through a worker profiling system as likely to exhaust regular benefits; (ii) who is eligible for funding for participation in the program; (iii) for whom funding for participation in the program is available; and (iv) who has not been terminated from or voluntarily left the program. Suggested State Legislation - 239

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(5) Regular benefits. Benefits payable to a person under state unemployment compensation law at [insert citation,] or unemployment compensation benefits payable to Federal civilian employees and to ex-service members pursuant to Federal law, other than additional and extended benefits. (6) Self-employment assistance activities. Activities, including, but not limited to, entrepreneurial training, business counseling and technical assistance, approved by the [Department of Labor and Industry,] on its own or in consultation with its designated service provider, for the program participant. These activities may be provided by either the [Department of Labor and Industry] or its designated service provider. (7) Self-employment assistance allowance. An allowance in lieu of regular benefits and funded in the same manner as regular benefits, payable to a program participant who meets the requirements of this Act. (8) Unemployment Compensation Law. Means applicable state unemployment compensation law. Section 3. [Program.] The [department] shall establish a self-employment assistance program in accordance with the provisions of this Act, subject to the availability of all funds necessary for the program. The [department] may implement the program on a pilot basis. Information about the program shall be made available to potential program participants. Section 4. [Self-Employment Assistance Allowance.] Subject to the provisions of section 5, the weekly self-employment assistance allowance payable under this Act to a program participant shall be equal to the weekly benefit amount for regular benefits otherwise payable. The sum of the allowances paid under this Act and regular benefits paid with respect to any benefit year shall not exceed the maximum amount payable for the benefit year under [insert citation] of state law. Section 5. [Eligibility.] (a) General rule. The self-employment assistance allowance described in section 4 shall be payable to a program participant who participates in self-employment assistance activities and is actively engaged on a full-time basis in efforts to establish a business and become self-employed. The selfemployment assistance allowance shall be payable at the same interval, on the same terms and subject to the same conditions as regular benefits, with the following exceptions: (1) Such program participant shall be considered to be unemployed under [insert citation] of state law; and (2) [insert citation.] (b) Ineligibility. A program participant who fails to participate in selfemployment assistance activities or who fails to actively engage on a fulltime basis in efforts to establish a business and become self-employed shall

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be ineligible for a self-employment assistance allowance for a week in which such failure occurs. Section 6. [Termination.] A program participant may be terminated from the program by the [department] if the individual fails to participate in self-employment assistance activities or fails to actively engage on a fulltime basis in efforts to establish a business and become self-employed. People who are terminated from or voluntarily leave the program may receive, if otherwise eligible, regular benefits with respect to the benefit year, provided that the sum of regular benefits paid and self-employment assistance allowances paid with respect to the benefit year shall not exceed the maximum amount payable for the benefit year under [insert citation] of state law. Section 7. [Limitation.] For a specific time period, the number of program participants receiving a self-employment assistance allowance under this Act shall not exceed [five (5)] percent of the number of people receiving regular benefits during that time period. Section 8. [Costs.] Self-employment assistance allowances paid under this Act shall be charged to employers as regular benefits are charged under [insert citation.] Section 9. [Applicability of Unemployment Compensation Law.] (a) General. Except where inconsistent with this Act, all terms and conditions of federal law and the applicable state unemployment law under [insert citation] concerning regular benefits shall be applicable to self-employment assistance allowances under this Act. Section 10. [Rules and Regulations.] The [department] may promulgate regulations to carry out the purposes of this Act. Section 11. [Report to General Assembly.] (a) General rule. The [department] shall make a report of the program provided for in this Act to the [Labor and Industry Committee] of the [Senate] and the [Labor Relations Committee] of the [House of Representatives] by [March 1, 1999,] and annually by the [first] day of [March] thereafter. (b) Content. This report shall include annual data on the number of program participants and the number of businesses developed under the program, business survival data, the cost of operating the program, compliance with program requirements and data related to business income, the number of employees and wages paid in the new businesses and the incidence and duration of unemployment after business start-up. The report Suggested State Legislation - 241

Self-Employment Assistance 1 1 1

may also include any recommended changes in the program. Section 12. [Severability.] [Insert severability clause.] Section 13. [Repealer.] [Insert repealer clause.] Section 14. [Effective Date.] [Insert effective date.]

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Slamming and Loading This Act designates the practice of slamming telephone customers as consumer fraud. It also prohibits telephone companies from loading services on customers. Slamming means changing customers subscriber service providers without the customers permission. Loading means adding and billing telephone services to customers without the customers permission. This Act does not define penalties for violations. However, a legislative report on the Minnesota law that is the basis for this Act says that companies that engage in slamming can be fined up to $25,000 per violation in Minnesota. Such penalties are outlined under another section of the Minnesota Statutes. Submitted as: Minnesota CH 68 Laws of 1997, 1997 (HF 1123) Enacted into law, 1997.

Suggested Legislation 1 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

(Title, enacting clause, etc.) Section 1. [Short Title.] This Act may be cited as an Act Relating to the Practices of Slamming and Loading. Section 2. [Prohibited Practices.] (a) A telephone company or telecommunications carrier may not do any of the following with respect to services regulated by the [commission:] (1) upon request, fail to disclose in a timely and uniform manner information necessary for the design of equipment and services that will meet the specifications for interconnection; (2) intentionally impair the speed, quality, or efficiency of services, products, or facilities offered to a consumer under a tariff, contract, or price list; (3) fail to provide a service, product, or facility to a consumer other than a telephone company or telecommunications carrier in accordance with its applicable tariffs, price lists, or contracts and with the commission s rules and orders; (4) refuse to provide a service, product, or facility to a telephone company or telecommunications carrier in accordance with its applicable Suggested State Legislation - 243

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tariffs, price lists, or contracts and with the commissionÂ&#x2019;s rules and orders; (5) impose restrictions on the resale or shared use of its services or network functions, provided that: (i) it may require that residential service may not be resold as a different class of service; and (ii) the [commission] may prohibit resale of services it has approved for provision for not-for-profit entities at rates less than those offered to the general public; or (6) provide telephone service to a person acting as a telephone company or telecommunications carrier if the [commission] has ordered the telephone company or telecommunications carrier to discontinue service to that person. (b) A telephone company or telecommunications carrier may not violate a provision of section 6 of this Act with regard to any of the services provided by the company or carrier. Section 3. [Revocation and Temporary Suspension.] Any certificate of authority may, after notice of hearing and a hearing, be revoked or temporarily suspended by the [commission,] in whole or in part, for the failure of its holder to furnish reasonably adequate telephone service within the area or areas determined and defined in the certificate of authority; failure to meet the terms and conditions of its certificate; intentional violation of the [commissionÂ&#x2019;s] rules or orders; or intentional violation of any applicable state or federal law relating to the provision of telephone or telecommunications services. Section 4. [Loading.] (a) Except as provided in paragraph (b) or (c) of this section, a telephone company or telecommunications carrier providing local service shall not charge a telephone service subscriber as defined in [insert citation] or a telephone or telecommunications service that is not required by the [commission] to be offered and for which the subscriber did not explicitly contract. (b) If a charge is assessed on a per use basis for a service described in paragraph (a), the charge shall be applied as a credit to the subscriberÂ&#x2019;s next monthly bill, if the subscriber notifies the telephone company or telecommunications carrier that the subscriber did not utilize the service or did not authorize the utilization of the service. (c) A telephone company or telecommunications carrier that receives a notification from a telephone service subscriber under paragraph (b) shall inform the subscriber of the ability to block the services from future use by the subscriber, and shall block the services from future use by the subscriber, if the subscriber so requests. If a subscriber requests that the carrier or company not block the service or later requests to have the block

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lifted, the subscriber shall be responsible for charges caused by the future utilization of that service. The carrier or company may not charge a recurring fee for blocking the service. Section 5. [Fraudulent Telephone Services; Slamming.] (a) For the purposes of this section, a telephone service subscriber means a person who contracts with a telephone company for telephone services or a telecommunications company for telecommunications services. (b) The definitions contained in [insert citation] apply to this section. Section 6. [Slamming Deemed Consumer Fraud.] (a) It is fraud under [insert citation] to request a change in a telephone service subscriber s local exchange or interexchange carrier without the subscriber s verified consent. (b) A telephone service subscriber may employ the remedies provided in [insert citation] for violations of paragraph (a). (c) For the purposes of paragraph (a): (1) the consent of the telephone service subscriber may be verified utilizing any method that is consistent with federal law or regulation; (2) compliance with applicable federal law and regulation, or state law and rule, whichever is more stringent, is a complete defense to an allegation of consumer fraud under paragraph (a); and (3) it is the responsibility of the company or carrier requesting a change in a telephone service subscriber s company or carrier to verify that the subscriber has authorized the change. A telephone company or telecommunications carrier providing local exchange service who has been requested by another telephone company or telecommunications carrier to process a change in a subscriber s carrier is only liable under this section if it knowingly participates in processing a requested change that is unauthorized. Nothing in this section shall be construed to change a telephone company s or telecommunications carrier s obligations under [insert citation.]

Section 7. [Severability.] [Insert severability clause.]

Section 8. [Repealer.] [Insert repealer clause.]

Suggested State Legislation - 245

Section 9. [Effective Date.] [Insert effective date.]

Small Business Air Quality Assistance This Act establishes a program to help small businesses comply with air pollution regulations that govern stationary emission sources. The law establishes an advisory panel of small business representatives and government officials to help small businesses comply with such regulations. Submitted as: Kansas SB 121 Enacted into law, 1997.

Suggested Legislation 1 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

(Title, enacting clause, etc.) Section 1. [Short Title.] This Act may be cited as the Â&#x201C;Small Business Assistance Act.Â&#x201D; Section 2. [Program Established.] (a) There is hereby created the [Small Business Stationary Source Technical and Environmental Compliance Assistance Program,] to be administered by the [secretary.] The program shall include each of the following: (1) Adequate mechanisms for developing, collecting and coordinating information concerning compliance methods and technologies for small business stationary sources and programs to encourage lawful cooperation among such sources and other persons to further compliance with this Act. (2) Adequate mechanisms for assisting small business stationary sources with pollution prevention and accidental release detection and prevention, including providing information concerning alternative technologies, process changes, products and methods of operation that help reduce air pollution. (3) A designated office within the [Department of Health and Environment,] reporting directly to the [secretary,] to serve as ombudsman for small business stationary sources in connection with implementation of this Act. (4) A compliance assistance program for small business stationary sources which assists small business stationary sources in determining applicable requirements and in receiving permits under this Act in a timely and efficient manner. (5) Adequate mechanisms to assure that small business stationary

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sources receive notice of their rights under this Act in such manner and form as to assure reasonably adequate time for such sources to evaluate compliance methods and any relevant or applicable proposed or final rule and regulation or standard adopted under this Act. (6) Adequate mechanisms for informing small business stationary sources of their obligations under this Act, including mechanisms for referring such sources to qualified auditors or for providing audits of the operations of such sources to determine compliance with this Act. (7) Procedures for consideration of requests from a small business stationary source for modification of: (A) Any work practice or technological method of compliance; or (B) The schedule of milestones for implementing such work practice or method of compliance preceding any applicable compliance date, based on the technological and financial capability of any such small business stationary source. No such modification may be granted unless it is in compliance with the applicable requirement of this Act and rules and regulations promulgated hereunder. (b) Â&#x201C;Small business stationary sourceÂ&#x201D; means a stationary air contaminant emission source that: (1) Is owned or operated by a person that employs [one hundred (100)] or fewer people; (2) is a small business concern as defined in the federal Small Business Act; (3) is not a major stationary source; (4) does not emit [fifty (50)] tons or more per year of any regulated air contaminant; and (5) emits less than [seventy-five (75)] tons per year of all regulated air contaminants. (c) Upon petition by a source, the [secretary], after notice and opportunity for public comment, may include as a small business stationary source for purposes of this section any stationary source which does not meet the criteria of subsection (b)(3), (4) or (5) but which does not emit more than [one hundred (100)] tons per year of all regulated air contaminants. (d) The [secretary] may exclude from the small business stationary source definition any category or subcategory of sources that the administrator of the United States Environmental Protection Agency determines to have sufficient technical and financial capabilities to meet the requirements of the federal Clean Air Act without the application of this program, as provided by section 507(c)(3)(A) of the 1990 amendments to the federal Clean Air Act. (e) The [secretary], in consultation with the administrator of the United States Environmental Protection Agency and the administrator of the United States Small Business Administration and after providing notice and the Suggested State Legislation - 247

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opportunity for public hearing, may exclude from the small business stationary source definition any category or subcategory of sources that the [secretary] determines to have sufficient technical and financial capabilities to meet the requirements of the Act without the application of this section. (f) There is hereby created a compliance advisory panel composed of [seven (7)] people. The compliance advisory panel shall: (1) Render advisory opinions concerning the effectiveness of the small business stationary source technical and environmental compliance assistance program, difficulties encountered and degree and severity of enforcement; (2) make periodic reports to the administrator of the United States Environmental Protection Agency concerning compliance of the [Small Business Stationary Source Technical and Environmental Compliance Assistance Program] with the requirements of the federal Paperwork Reduction Act, the Regulatory Flexibility Act and the Equal Access to Justice Act; (3) review information for small business stationary sources to assure such information is understandable by the lay person; and (4) have the small business stationary source technical and environmental compliance assistance program serve as the secretariat for the development and dissemination of such reports and advisory opinions. (g) The compliance advisory panel shall consist of: (1) [two (2)] members who are not owners, or representatives of owners, of small business stationary sources, appointed by the [governor] to represent the general public; (2) [two (2)] members who are owners, or who represent owners, of small business stationary sources, [one (1)] appointed by the [speaker] and [one (1)] appointed by the [minority leader of the House of Representatives;] (3) [two (2)] members who are owners, or who represent owners, of small business stationary sources, [one (1)] appointed by the [president] and one appointed by the [minority leader of the Senate;] and (4) [one (1)] member appointed by the [secretary] to represent the [Department of Health and Environment.] (h) Members of the compliance advisory panel shall serve for terms of [two (2)] years serving on the effective date of this Act by appointment by the [governor,] the [speaker of the House of Representatives ] or the [president of the Senate] shall serve for terms ending [date;] members serving on the effective date of this Act by appointment by the [minority leader of the House of Representatives ,] [the minority leader of the Senate] or the [secretary of Health and Environment] shall serve for terms ending [date]. Upon expiration of such terms, the term of each member appointed to a vacancy created by expiration of a term shall be [two (2)] years commencing on [July 1] immediately following expiration of the term of the memberÂ&#x2019;s predeces-

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sor. Any vacancy in the office of an appointed member occurring on the panel shall be filled for the unexpired term by appointment by the original appointing authority. (i) A chairperson shall be elected annually by the members of the compliance advisory panel. A vice-chairperson shall be designated by the chairperson to serve in the absence of the chairperson. (j) The [secretary] may reduce any fee required by this Act for any classification of small business sources to take into account the financial resources of such classification.

Section 3. [Severability.] [Insert severability clause.]

Section 4. [Repealer.] [Insert repealer clause.]

Suggested State Legislation - 249

Section 5. [Effective Date.] [Insert effective date.]

Standby Guardianship

This Act is based on a 1998 Virginia law that allows a parent who is seriously ill to designate, either by obtaining prior court approval or by a more informal written designation, a standby guardian. The other parent and specified family members are to be given notice of the appointment. The standby guardian will be authorized to act for the parent with respect to a minor child of the parent upon the occurrence of a triggering event, which must be specified by the court or the parent (e.g., the parent s incompetence or debilitation and consent). Provisions are included for reviewing continuation of an ongoing standby guardianship and for revoking or otherwise terminating the authority of the standby guardian. Responsibility is placed on the standby guardian to ensure that permanent arrangements for the care of the child are made when the parent is no longer able to do so. This Act differs from the 1996 Suggested State Legislation Guardianship of Minors and Estates of Minors by setting up a way to appoint a guardian in advance of and contingent upon a triggering act or situation. The 1996 entry addresses how guardians are directly appointed by petition or upon the parents deaths. Submitted as: Virginia CH 829, Article 17 Enacted into law, 1998

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(Title, enacting clause, etc.) Section 1. [Short Title.] This Act may be cited as an Act to Establish Standby Guardianship. Section 2. [Definitions.] (a) Attending physician means the physician who has primary responsibility for the treatment and care of a qualified parent. (b) Designation means a writing which is voluntarily executed in conformance with the requirements of section 4 of this Act and signed by a parent and names a person to act as standby guardian. (c) Determination of debilitation means a written determination made by an attending physician that a qualified parent is chronically and substantially unable to care for a minor child as a result of a debilitating ill-

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ness, disease or injury. Such a determination shall include the physician s medical opinion to a reasonable degree of medical certainty, regarding the nature, cause, extent and probable duration of the parent s debilitating condition. (d) Determination of incompetence means a written determination made by the attending physician that to a reasonable degree of medical certainty a qualified parent is chronically and substantially unable to understand the nature and consequences of decisions concerning the care of a minor child as a result of a mental or organic impairment and is consequently unable to care for the child. Such a determination shall include the physician s medical opinion, to a reasonable degree of medical certainty, regarding the nature, cause, extent and probable duration of the parent s incompetence. (e) Parent means a genetic or adoptive parent or parent determined in accordance with the standards set forth in [insert citation,] and includes a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody. (f) Qualified parent means a parent who has been diagnosed, as evidenced in writing, by a licensed physician to be afflicted with a progressive or chronic condition caused by injury, disease or illness from which, to a reasonable degree of medical probability, the patient cannot recover. (g) Standby guardian means a person who, in accordance with this article, is designated in writing or approved by the court to temporarily assume the duties of guardian of the person or guardian of the property, or both, of a minor child on behalf of or in conjunction with a qualified parent upon the occurrence of a triggering event. The term shall be so construed as to enable the parent to plan for the future care of a child, without terminating parental or legal rights, and to give the standby guardian the authority to act in a manner consistent with the known wishes of a qualified parent regarding the care, custody and support of the minor child. (h) Triggering event means the event upon the occurrence of which the standby guardian may be authorized to act. The triggering event shall be specified in the court order or written designation and shall be the earlier of a determination of incompetence or the death of the qualified parent. However, in the case of a standby guardian judicially approved pursuant to section 3 of this Act, the triggering event may also be specified as the qualified parent s written consent to the commencement of the standby guardian s authority. In the case of a standby guardian designated pursuant to section 4, the triggering event may also be specified as a determination of debilitation of the qualified parent and that parent s written consent to the commencement of the designated standby guardian s authority. Section 3. [Petition for Court Approval of Standby Guardian.] (a) Upon petition of any person, the juvenile court of the jurisdiction in Suggested State Legislation - 251

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which a child resides may approve a person as standby guardian for a child of a qualified parent upon the occurrence of a specified triggering event. If requested in the petition, the court may also approve an alternate standby guardian identified by the petitioner, to act in the event that at any time after approval pursuant to this section the standby guardian is unable or unwilling to assume the responsibilities of the standby guardianship. (b) The petition shall state: (1) The name and address of the petitioner and his relationship to the child and the name and address of the child s qualified parent, and the name and address of any other parent of the child whose identity and whereabouts are known to the petitioner or can reasonably be ascertained; (2) The name, address and birth date of the child; (3) The nature of the proposed triggering event, including when a qualified parent s consent would be effective in those cases where such consent is chosen as the triggering event; (4) Whether a determination of incompetence or debilitation has been made and, if so, when and by whom; (5) Whether there is a significant risk that the qualified parent will imminently become physically or mentally incapable of caring for the child or die as the result of a progressive chronic condition or illness; however, a petitioner shall not be required to submit medical documentation of a parent s medical status with the petition; (6) The name and address of the person proposed as standby guardian and any alternate and whether the petition requests that such person be given authority as a guardian of the person or guardian of the property of the minor, or both; (7) A statement of any known reasons as to why the child s other parent is not assuming or should not assume the responsibilities of a standby guardian; (8) Whether there is any prior judicial history regarding custody of the child or any pending litigation regarding custody of the child; and (9) The name and address of the attending physician. (c) Upon the filing of a petition, notice of the filing shall promptly be given to each parent of the child whose identity and whereabouts are known to the petitioner. The court shall direct the issuance of summonses to the child, if the child is twelve or more years of age and the proposed standby guardian and alternate, if any, and such other persons as appear to the court to be proper or necessary parties to the proceedings including the child s parents, guardian, legal custodian or other person standing in loco parentis, if the identity and whereabouts of such persons are known. Service of the summons shall be made pursuant to [insert citation.] (d) An order approving the standby guardian shall not be entered without a hearing if there is another known parent, stepparents, adult siblings, or other adult related to the child by blood, marriage, or adoption who re-

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quests a hearing within [ten (10)] days of the date that notice of the filing was sent or if there is other litigation pending regarding custody of the child. (e) Prior to any hearing on the petition, the court may appoint a discreet and competent attorney at law as guardian ad litem to represent the child pursuant to [insert citation.] In the case of a petition filed by anyone other than a parent of the child, the court shall appoint a guardian ad litem. The qualified parent shall not be required to appear in court if the parent is medically unable to appear, except upon motion for good cause shown. Section 4. [Court Order Approving Standby Guardianship; Authority; When Effective.] (a) Upon consideration of the factors set out in [insert citation] and finding that the childÂ&#x2019;s parent is a qualified parent and appointment of a standby guardian is in the best interest of the child, the court shall appoint a proper and suitable person as standby guardian and, if requested, a proper and suitable person as alternate standby guardian. However, when a petition is filed by a person other than a parent having custody of the child, the standby guardian shall be appointed only with the consent of the qualified parent unless the court finds that such consent cannot be given for medical reasons. (b) The order shall specify the triggering event and shall provide that the authority of the standby guardian is effective upon receipt by the standby guardian of a determination of incompetence or a certificate of death or the earlier of either or if so requested in the petition, upon receipt by the standby guardian of a written consent of the qualified parent and filing of the consent with the court. The written consent shall be executed after the entry of the court order and signed by the qualified parent, or by another in his presence and on his behalf. (c) As soon as practicable after entry of the order, a copy shall be served on the standby guardian. (d) A standby guardian shall have the powers and duties of a guardian of the person and a guardian of the property of a minor, unless otherwise specified in the order. (e) The standby guardian shall file with the court, as soon as practicable but in no event later than [thirty (30)] days following a parentÂ&#x2019;s death, determination of incompetence or consent, a copy of the certificate of death, determination of incompetence or consent of the qualified parent upon which his authority is based. Failure to file within the time specified shall be grounds for the court to rescind the authority of the standby guardian sua sponte or upon petition of any person but all acts undertaken by the standby guardian on behalf of and in the interests of the child shall be valid and enforceable. Suggested State Legislation - 253

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Section 5. [Written Designation of a Standby Guardian by a Parent; Commencement of Authority; Court Approval Required.] (a) A parent may execute a written designation of a standby guardian at any time. The written designation shall be signed by the parent. Another adult may sign the written designation on behalf of the parent if the parent is physically unable to do so, provided the designation is signed at the express request of the parent and in the presence of the parent. The designated standby guardian or alternate may not sign on behalf of the parent. The signed designation shall be delivered to the standby guardian and any alternate named as soon as practicable. The written designation shall state: (1) The name, address and birth date of the child affected; (2) The triggering event; and (3) The name and address of the person designated as standby guardian or alternate. (b) Following such delivery of the designation, the authority of a standby guardian to act for a qualified parent shall commence upon the occurrence of the specified triggering event and receipt by him of a determination of incompetence, a certificate of death of the parent, or a determination of debilitation and the qualified parentÂ&#x2019;s written consent to such commencement, signed by the parent or another on his behalf and at his direction as provided in subsection (a) for the designation. (c) A standby guardian under a designation shall have the authority of a guardian of the person and a guardian of the property of the child, unless otherwise specified in the designation. (d) A designated standby guardian or alternate shall file a petition for approval as standby guardian. The petition shall be filed as soon as practicable after the occurrence of the triggering event but in no event later than [thirty (30)] days after the date of the commencement of his authority. The authority of the standby guardian shall cease upon his failure to so file, but shall recommence upon such filing. The petition shall be accompanied by a copy of the designation and any determinations of incapacity or debilitation or a certificate of death. (e) The provisions of section 3 (c) of this Act shall apply to a petition filed pursuant to this section. The court shall enter an order approving the designated guardian as standby guardian upon finding that: (1) The person was duly designated as standby guardian pursuant to this section and the designation has not been revoked; (2) A determination of incompetence was made; a determination of debilitation was made and the parent consented to commencement of the standby guardianÂ&#x2019;s authority; or the parent has died as evidenced by a death certificate; (3) The best interests of the child will be served by approval of the standby guardian; and (4) If the petition is by an alternate, that the designated standby

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guardian is unwilling or unable to serve. Section 6. [Further Proceedings to Determine Permanent Guardianship, Custody.] (a) If the triggering event was death of the qualified parent, within [ninety (90)] days following the occurrence of the triggering event or, if later, commencement of the standby guardian s authority, the standby guardian shall petition for appointment of a guardian for the child as otherwise provided by law or initiate other proceedings to determine custody of the child pursuant to [insert citation,] or both. (b) In all other cases a standby guardian shall promptly after occurrence of the triggering event initiate such proceedings to determine permanent custody, absent objection by the qualified parent. (c) The petition shall be accompanied by: (1) The court order approving or written designation of a standby guardian; and (2) The attending physician s written determination of incompetence or debilitation or a verification of death. Section 7. [Revocation, Refusal, Termination of Standby Guardianship.] (a) The authority of a standby guardian approved by the court may be revoked by the qualified parent by his filing a notice of revocation with the court. The notice of revocation shall identify the standby guardian or alternate standby guardian to which the revocation will apply. A copy of the revocation shall also be delivered to the standby guardian whose authority is revoked and any alternate standby guardian who may then be authorized to act. At any time following his approval by the court, a standby guardian approved by the court may decline to serve by filing a written statement of refusal with the court and having the statement personally served on the qualified parent and any alternate standby guardian who may then be authorized to act. (b) When a written designation has been executed, but is not yet effective because the triggering event has not yet occurred, the parent may revoke or the prospective standby guardian may refuse the designation by notifying the other party in writing. A written designation may also be revoked by the execution of a subsequent inconsistent designation. (c) When a standby guardian s authority is effective upon debilitation or incompetence of the qualified parent, the standby guardian s authority to act on behalf of the parent continues even though the parent is restored to health unless the qualified parent notifies the guardian and, if appropriate, the court, in writing, that the standby guardian s authority is revoked upon such restoration or otherwise. If at any time the court finds that the parent no longer meets the definition of qualified parent, the court shall rescind Suggested State Legislation - 255

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its approval of the standby guardian. Section 8. [Review of Standby Guardianship.] (a) A childÂ&#x2019;s parent, stepparent, adult sibling or any adult related to the child by blood, marriage or adoption may petition the court which approved the standby guardian at any time following such approval and prior to any termination of the standby guardianship for review of whether continuation of the standby guardianship is in the best interests of the child. Notice of the filing of a petition shall promptly be given to the standby guardian, the child, if the child is [twelve (12)] or more years of age, and each parent of the child whose identity and whereabouts are known or could reasonably be ascertained. (b) That the [Office of the Executive Secretary of the Supreme Court] shall develop a form for the notice which is required pursuant to section 3 (c) of this Act, which shall include notice that no change in custody or other legal rights is effected by the appointment of a standby guardian and that it is not necessary for a recipient of the notice to appear.

Section 9. [Severability.] [Insert severability clause.]

Section 10. [Repealer.] [Insert repealer clause.] Section 11. [Effective Date.] [Insert effective date.]

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State Internet Legislation (Note) The Internet is one of the most advanced and challenging developments of the 20th Century. Government decisions about whether, how and when to regulate the Internet will greatly affect the lives of people in the 21st Century. The debate includes taxes, consumer protection, privacy, protecting minors and unsolicited e-mail.

TAXATION Internet taxation is being debated at the federal level, where the U.S. House of Representatives passed in 1998, HR 4105, its version of the Internet Tax Freedom Act. Major provisions of HR 4105 would establish a threeyear moratorium on state and local taxation of Internet access, byte taxes, or multiple and discriminatory taxes on electronic commerce. The moratorium would apply to all 50 states, but eight states that currently claim to tax Internet access could opt out if they enact legislation within one year that expressly affirms their intention to tax Internet access. This provision would apply to Connecticut, Iowa, New Mexico, North Dakota, Ohio, South Dakota, Tennessee and Wisconsin. The bill also establishes an Advisory Commission on Electronic Commerce to examine: (1) state and local taxation of transactions using the Internet and Internet access; (2) the imposition of collection requirements on all remote sellers regardless of nexus; (3) the collection and administration of consumption taxes on remote commerce in the United States and other countries; (4) the impact on the global economy; and (5) ways to simplify taxes imposed on the provision of telecommunications services. Across the country, several states have already enacted laws restricting or outlawing taxation of the Internet. In 1998, New York passed AB 10952/ SB 7356 which exempts Internet access from the sales tax and clarifies that the Internet is not a telecommunications service for tax purposes. The bill also states that nexus is not created by the presence of a server or the ability to access a web page in New York. VirginiaÂ&#x2019;s HB 278, also enacted in 1998, similarly exempts Internet access from the stateÂ&#x2019;s sales tax. Colorado (SB 49), Missouri (SB 627) and Alabama (HB 160) passed similar bills in 1998 that clarify that Internet access and interactive computer services are not subject to tax. Other states that have passed legislation restricting Internet taxation include Georgia, Massachusetts and Washington in 1997 and Pennsylvania in 1998.

CONSUMER PROTECTION Suggested State Legislation - 257

State Internet Legislation (Note) The rapid growth in Internet commerce has prompted some states to consider legislation that would expand existing consumer-fraud protections to include transactions over the Internet. Other states have looked to strengthen investigation powers of law enforcement agencies. California enacted legislation in 1996 (AB 3320) that expanded the state s laws governing telephone, mail order and catalog sales practices to include sales made over the Internet. The state currently has legislation pending (SB 597) that would add false claims disseminated via the Internet to the current law regarding unlawful advertising practices. The bill also exempts Internet service providers and commercial online services from liability. Similarly, Georgia enacted legislation in 1997 (HB 708) prohibiting fraudulent schemes perpetrated through telemarketing or over computer networks. In 1997, the New Jersey High Technology Crimes and Investigation Support Unit was created within the Division of State Police. The legislature is now considering a bill (SB 75) that would codify this administrative action. The Unit s functions include investigating computer-manipulation crimes, illegal online activities, telecommunications crimes, thefts of computer-related technologies and related activities.

PRIVACY The major trend in privacy legislation this year has been bills to define and strengthen penalties for the much-publicized crime of identity fraud. As of this writing, proposals have been introduced in 37 states, and have been enacted in Arizona, Colorado, Georgia, Kansas, Mississippi, West Virginia and Wisconsin. The complexity of balancing privacy concerns with the need to protect a free flow of information on the Internet has prompted some states to consider legislation establishing privacy task forces or commissions, rather than enacting blanket restrictions on information use. One example is California SB 1659, which in 1996 created the Joint Task Force on Personal Information and Privacy. The purpose of the Task Force was to examine existing laws relating to the use or distribution of personal information by public and private entities and to make recommendations regarding any changes needed to those statutes. The Task Force was composed of an equal number of members of the Assembly and the Senate, as well as an advisory committee made up of industry, public interest, consumer protection and governmental organizations.

PROTECTION OF MINORS Several states have wrestled with possible ways to restrict access to pornography and other material considered harmful to minors. Legislators are challenged with balancing these concerns with protecting free speech 258 - The Council of State Governments

State Internet Legislation (Note) and avoiding undue liability for innocent third parties. In addition, there is the controversial issue of defining what is and is not harmful to minors. There seems to be a general consensus that an important element in this effort is encouraging parental use of commercially available blocking software. California enacted AB 181 in 1997 which makes it a crime to use electronic mail, the Internet or an online service to distribute pornographic material to minors or seduce minors. The bill holds harmless Internet service providers, commercial on-line service providers and cable television companies from criminal liability for the actions of their subscribers or service users. In New Mexico, a bill enacted in 1998 which establishes as criminal offenses dissemination of material that is harmful to a minor by computer and child luring by computer has been blocked by a preliminary injunction issued by a federal district court. Similar legislation has been considered in 15 states. New York s Penal Law 235.22 of 1996 makes it a crime to disseminate indecent materials online to minors for the specific purpose of inducing them to engage in sexual acts. Legal defenses contained in the statute include good faith, reasonable, effective and appropriate actions to restrict or prevent minors access to indecent materials.

UNSOLICITED E-MAIL Though several states have struggled with balancing the use of technology as a legitimate advertising tool with the potential harm and abuses of unsolicited e-mail, only Nevada has enacted legislation restricting such messages. Ten states introduced bills on unsolicited e-mail in 1998. These proposals attracted much debate, but the only agreement reached in 1998 was by Washington-state lawmakers, who enacted legislation establishing a task force to study the issue further and issue a report by November 15, 1998. The 1997 bill enacted in Nevada (SB 13) allows a recipient to collect civil damages and attorney s fees if an unsolicited e-mail message does not

Suggested State Legislation - 259

contain required disclosures.

State Transportation Infrastructure Bank (Note) The federal Intermodal Surface Transportation Efficiency Act of 1991, as amended, and the National Highway System Designation Act of 1995, as amended, enable states to establish state infrastructure banks for making loans and providing other assistance to public and private entities to build or maintain the nation s transportation infrastructure. The national Act also grants consent to two or more states to enter an interstate compact to establish such a bank. At least three states created these infrastructure banks in 1997; Louisiana, New Jersey and North Carolina. However, as of June 1998, none of these states had enacted an interstate compact in conjunction with the federal law. Louisiana Act 1372 of 1997 establishes an infrastructure bank to make loans and provide other assistance to public and private entities carrying out or proposing to carry out eligible infrastructure projects and enter into such cooperative agreements, interstate compacts and cooperative endeavor agreements as necessary to fulfill the Act. Funding sources include the federal and state governments and other sources. The Act authorizes the infrastructure bank to establish and administer a revolving fund to finance eligible infrastructure projects. Financing instruments include loans, bonds and purchase and lease agreements. Projects must also be approved by the State Bond Commission. The bank is governed by a board of directors which includes the state treasurer, secretary of transportation, secretary of economic development, the chairs of several legislative committees (e.g., Senate Transportation Committee), and one member who is nominated by the state bankers association and has experience in investment banking. The treasurer chairs the board. Louisiana s law also requires the bank to charge interest at or below market interest rates on its loans. New Jersey Chapter 142 of 1997 establishes a special non-lapsing, revolving sub-account of the Special Transportation Fund to be known as the State Transportation Infrastructure Bank. The bank shall be credited with state and federal funds appropriated to it, monetary donations made available to the state to support the Transportation Infrastructure Bank Program and any money received as repayment of the money loaned under the Act. The Act directs that money in the infrastructure bank be used to provide loans or other assistance to public or private entities or consortia thereof for the purpose of financing all or a portion of the costs incurred for the planning, acquisition, engineering, construction, reconstruction, repair and 260 - The Council of State Governments

State Transportation Infrastructure Bank (Note) rehabilitation of a transportation project permitted under the program. North Carolina SL 428 of 1997 says the state Department of Transportation Â&#x201C;shall have such powers as are necessary to establish, administer, and receive federal funds for a transportation infrastructure banking program as authorized by the Intermodal Surface Transportation Efficiency Act of 1991 - as amended, and the National Highway System Designation Act of 1995 as amended.Â&#x201D; The law authorizes the state Department of Transportation to apply for, receive, administer and comply with all conditions and requirements related to federal financial assistance necessary to fund the infrastructure banking program. The program may use federal and state funds to provide loans or other financial assistance to governmental units, including toll authorities. The North Carolina Act also directs the state transportation department and the state treasurer to jointly establish a separate infrastructure banking account with necessary fiscal controls and accounting procedures. Governmental units that apply for loans and execute debt instruments under the program must pledge as security for such obligations revenues derived from the operation of the benefited facilities or systems, other sources of revenue, or their full faith and credit or any combination thereof. Interested readers can contact the states to get a copy the laws men-

Suggested State Legislation - 261

tioned in this Note.

Student Religious Liberty Three states took action during 1997 and 1998 to address religion and free speech in schools; Alabama, Kentucky and Tennessee. Alabama SB 82 would create a safe harbor for public schools desiring to comply with judicial decisions concerning religion and free speech. The bill specified when certain religious behavior on public-school property is acceptable and not acceptable. It also provided for specific administrative remedies and the institution of legal action challenging public-school policy. Alabama SB 82 died in committee in April 1998. Kentucky HB 2 establishes religious and free speech rights of students. It provides that students can voluntarily pray, express religious viewpoints and possess and distribute religious literature as long as such practices do not disrupt the schools or become harassing. Generally, its language is similar to Tennessee s. Kentucky enacted HB 2 into law in 1998. Tennessee was the first state of the three to enact such a law. There were no court challenges to Tennessee s law as of June 1998. This Act is based on Tennessee s law. This Act establishes religious and free speech rights of students. It also provides that students can voluntarily pray, express religious viewpoints and possess and distribute religious literature as long as such practices do not disrupt the schools or become harassing. Submitted as: Tennessee CH 422, Laws of 1997 Enacted into law, 1997.

Suggested Legislation 1 2 1 2 3 4 5 6 7 8 9 10

(Title, enacting clause, etc.) Section 1. [Short Title.] This Act may be cited as the Student Religious Liberty Act . Section 2. [Legislative Findings and Intent.] (a) The [General Assembly] finds the following: (1) Judicial decisions concerning religion, free speech and public education are widely misunderstood and misapplied. (2) Confusion surrounding these decisions has caused some to be less accommodating of the religious liberty and free speech rights of students than permitted under the First Amendment to the United States Constitution.

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(3) Confusion surrounding these decisions has resulted in needless litigation and conflicts. (4) The Supreme Court of the United States has ruled that the establishment clause of the First Amendment to the United States Constitution requires that public schools neither advance nor inhibit religion. Public schools should be neutral in matters of faith and treat religion with fairness and respect. (5) Neutrality to religion does not require hostility to religion. The establishment clause does not prohibit reasonable accommodation of religion, nor does the clause bar appropriate teaching about religion. (6) Accommodation of religion is required by the free speech and free exercise clauses of the First Amendment as well as by the Equal Access Act (20 U.S.C. 4071 et seq.) and the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.). (7) Setting forth the religious liberty rights of students in a statute would assist students and parents in the enforcement of the religious liberty rights of the students and provide impetus to efforts in public schools to accommodate religious belief in feasible cases. (b) The purpose of this Act is to create a safe harbor for schools desiring to avoid litigation and to allow the free speech and religious liberty rights of students to the extent permissible under the establishment clause. Section 3. [Definitions.] As used in this Act unless the context otherwise requires: (1) Establishment clause means the portion of the First Amendment to the United States Constitution that forbids laws respecting an establishment of religion. (2) Free exercise clause means the portion of the First Amendment to the United States Constitution that forbids laws prohibiting the free exercise of religion. (3) Free speech clause means the portion of the First Amendment to the United States Constitution that forbids laws abridging the freedom of speech. (4) Public school means any school that: (A) Is operated by the state, a political subdivision of the state, or governmental agency within the state; and (B) Receives state financial assistance. (5) Student means an individual attending a public school. Section 4. [Student Rights.] (a) A student shall have the right to carry out an activity described in any of subparts one (1) through four (4) of subsection (b), if the student does not: (1) Infringe on the rights of the school to: Suggested State Legislation - 263

Student Religious Liberty 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51

(A) Maintain order and discipline; (B) Prevent disruption of the educational process; and (C) Determine educational curriculum and assignments; (2) Harass other persons or coerce other persons to participate in the activity; or (3) Otherwise infringe on the rights of other persons. (b) Subject to the provisions of subsection (a) of this section, a student shall be permitted to voluntarily: (1) Pray in a public school, vocally or silently, alone or with other students to the same extent and under the same circumstances as a student is permitted to vocally or silently reflect, meditate or speak on nonreligious matters alone or with other students in such public school; (2) Express religious viewpoints in a public school to the same extent and under the same circumstances as a student is permitted to express viewpoints on non-religious topics or subjects in such school; (3) Speak to and attempt to share religious viewpoints with other students in a public school to the same extent and under the same circumstances as a student is permitted to speak to and attempt to share nonreligious viewpoints with such other students; (4) Possess or distribute religious literature in a public school, subject to reasonable time, place, and manner restrictions to the same extent and under the same circumstances as a student is permitted to possess or distribute literature on non-religious topics or subjects in such school; and (5) Be absent, in accordance with local education agency attendance policy, from a public school to observe religious holidays and participate in other religious practices to the same extent and under the same circumstances as a student is permitted to be absent from a public school for nonreligious purposes. (c) No action may be maintained pursuant to this Act unless the student has exhausted the following administrative remedies: (1) The student or the student s parent or guardian shall state their complaint to the school s principal. (2) If the concerns are not resolved, then the student or the student s parent or guardian shall make complaint in writing to the superintendent with the specific facts of the alleged violation. (3) The superintendent shall investigate and take appropriate action to ensure the rights of the student are resolved within [thirty (30)] days of receiving the written complaint. (4) Only after the superintendent s investigation and action may a student or the student s parent or guardian pursue any other legal action pursuant to this Act. (d) If a right of a student established under this section is violated by a public school, the student may assert the violation as a cause of action or a defense in a judicial proceeding and obtain appropriate relief against the

264 - The Council of State Governments

Student Religious Liberty 52 53 54 55 56 57 1 2 3 4 5 6 1 2 3 4 5 6 1 2 3 4 5 1 1

public school. Any such action shall be brought in the circuit or chancery court where the violation occurred or where the student resides. Standing to assert a cause of action or defense under this section shall be governed by the [insert citation] and common law interpretations of such rules. (e) A student prevailing in a claim brought against a public school for a violation of this section or an action brought by a public school against a student for conduct covered by this section shall be entitled to reasonable attorney fees, court costs, and the cost of bringing or defending the action. Section 4. [Pre-emption.] (a) Nothing in this Act shall be construed to affect, interpret, or in any way address the establishment clause. (b) The specification of religious liberty or free speech rights in this Act shall not be construed to exclude or limit religious liberty or free speech rights otherwise protected by federal, state or local law. Section 5. [School Employees.] Nothing in this Act shall be construed to support, encourage or permit a teacher, administrator or other employee of the public schools to lead, direct or encourage any religious or anti-religious activity in violation of that portion of the First Amendment of the United States Constitution prohibiting laws respecting an establishment of religion. Section 6. [Severability.] If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable. Section 7. [Repealer.] [Insert repealer clause.]

Suggested State Legislation - 265

Section 8. [Effective Date.] [Insert effective date.]

Tax Credits for School-to-Career Internships This Act creates a tax credit of 10 percent of the amount that companies spend on wages, workers compensation, unemployment insurance and training expenses to be used to employ students or to allow students to participate in internships. Qualified school-to-career program means a program that integrates school curriculum with job training and encourages placement of students in jobs or internships that will teach the students new skills and improve their school performance. Submitted as: Colorado CH 247, Laws of 1997 (HB 97-1152) Enacted into law, 1997.

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(Title, enacting clause, etc.) Section 1. [Short Title.] This Act may be cited as an Act Concerning a State Income Tax Credit as an Incentive for Investment in Qualified Schoolto-Career Programs. Section 2. [Credit Against Tax - Investment in School-To-Career Program.] (1) The [General Assembly] hereby recognizes that businesses and other aspects of the economy need trained, educated, and motivated workers. It is therefore the intent of the [General Assembly] to encourage private investment in programs that integrate traditional education with on-the-job training. It is further the intent of the [General Assembly] to foster and encourage cooperation among the private sector and the educational community in creating programs that will open doors of opportunity for students and enable them to develop the knowledge and skills that will empower them to become productive members of society. (2) (a) For income tax years beginning on or after [January 1, 1997,] there shall be allowed to any person as a credit against the tax imposed by this article an amount equal to [ten (10] percent of the total qualified investment made in a qualified school-to-career program. (b) For purposes of this subsection (2): (i) Qualified investment means money directly expended for

266 - The Council of State Governments

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wages, workers compensation insurance, unemployment insurance, and training expenses to employ a student to work or to allow a student to participate in an internship through a qualified school-to-career program. (ii) Qualified school-to-career program means a program that integrates school curriculum with job training, that encourages placement of students in jobs or internships that will teach them new skills and improve their school performance, and that is approved by: (A) The board of education of the school district in which the program is operating; (B) The [state board for community colleges and occupational education;] (C) The [division of private occupational schools] created pursuant to [insert citation;] or (D) The state [commission on higher education.] (3) If the amount of the credit provided for pursuant to subsection (2) of this section exceeds the amount of income taxes due on the income of the taxpayer in the income tax year for which the credit is being claimed, the amount of the credit not used as an offset against income taxes in said income tax year shall not be allowed as a refund but may be carried forward as a credit against subsequent years tax liability for a period not exceeding [five (5)] years and shall be applied first to the earliest income tax years possible. Any amount of the credit that is not used during said period shall not be refundable to the taxpayer.

Section 3. [Severability.] [Insert severability clause.]

Section 4. [Repealer.] [Insert repealer clause.] Section 5. [Effective Date.] [Insert effective date.]

Suggested State Legislation - 267

Year 2000/Y2K (Note) Most states have recognized the importance of preparing for the Year 2000 (Y2K) date change. The three major issue areas that have been addressed at the state level are compliance of government-operated systems, funding and government liability for damages resulting from Y2K system failure. For example, Florida s SB 3619, which became law on May 28, 1998, authorizes the Governor to transfer resources, including personnel, between agencies to deal with Y2K-related system failure or potential failure. Funding to deal with Y2K conversion costs had been provided in nearly all states, either through special appropriation (such as the $152 million provided in Georgia s HB 1166) or through transfer and reallocation of existing technology funding. Many states have provided immunity from liability for Y2K-related failure of state-operated systems, either through interpretation of existing doctrine of sovereign immunity or through specific legislation. Nevada s SB 180 (1997), for example, extends Y2K immunity to state entities, political subdivisions, employees, and immune contractors. In Virginia, HB 277 (1998) specifically gives immunity from a claim arising from the failure of a computer, software program, database, network, information system, firmware or any other device, whether operated by or on behalf of the commonwealth of Virginia or one of its agencies, to interpret, produce, calculate, generate, or account for a date which is compatible with the Year 2000 date change, (The clause or on behalf of apparently extends the state s immunity to contracted operations.) In addition to the treatment of state liability for Y2K-related system failure, several bills have been introduced in state legislatures to address the question of limiting private-sector liability for damages resulting from such failures. In California, SB 1710 (1998) specifies that recovery of damages resulting from computer-date failure would be limited to damages resulting from bodily injury and would exclude emotional injury. The bill also would allow costs reasonably incurred to reprogram or replace and internally test the relevant computer system, program or software. The bill also would cap damages for non-economic losses at $250,000. Similarly, in Pennsylvania, SB 1434 limits the types of damages that can be awarded in actions based on a Y2K system failure. Although not a legislative issue, many states are also wrestling with the issue of information technology inter-operability. Specifically, there is concern about possible effect on state programs if all systems operating in conjunction with state systems are not Y2K compatible. Oregon HB 2903 268 - The Council of State Governments

Year 2000/Y2K (Note) (1997) recognizes that errors and problems may occur in state computers in the year 2000. The law directs the state administrative services department to develop and implement a plan to prevent such problems and establish a corps of state employees to work on them. The law also directs the department to establish agreements with state universities to develop courses that provide the training and skills to work on the Y2K project in the state. Interested readers can contact the states to get copies of the legislation

Suggested State Legislation - 269

mentioned in this Note.

Federal Mandates For State Action (Note) Federal mandates are traditionally described as actions by the federal government to force states to do something or pre-empt state authority. The national 55 mph speed limit was a classic example of the former. Pending congressional legislation to stop states from taxing Internet commerce is an example of the latter. Mandates can come from any branch of the federal government, and arise in the form of laws, regulations and court rulings. Suggested State Legislation volumes have highlighted congressional mandates on the states since 1992, beginning with legislation in the 101st Congress. This Note addresses the first session of the 105th Congress, January 3 through November 13, 1997, wherein 153 public bills were enacted into law. Defining congressional mandates was supposedly made easier by the Unfunded Mandates Reform Act of 1995 (UMRA). UMRA requires the Congressional Budget Office (CBO) to review virtually all bills reported by the congressional committees for the presence of federal mandates and to estimate the costs of such mandates. Federal legislation that imposes $50 million or more in unfunded annual costs to the states is officially considered a mandate. Using UMRA criteria, the CBO reports that Congress did not enact any legislation in 1997 that exceeded the $50 million threshold. The CBO says the procedures established by the UMRA appear to be achieving their goals by focusing greater attention on the costs of federal mandates and ensuring that Congress knows about those costs when it considers legislation. However, three bills were introduced during the first session that the CBO expects will exceed the threshold: S 1150, The Agricultural Research, Extension and Education Reform Act - A provision in this bill limits the federal government s responsibility to provide funding to states for the administrative costs of the Food Stamp Program. The CBO deemed this bill a mandate because it forces states to absorb added program costs without giving them the option to cut services to reduce these costs. S 442, The Internet Tax Freedom Act - This bill prohibits state and local governments from imposing direct or indirect taxes on the Internet or on interactive computer services. S 104 and HR 1270, The Nuclear Waste Policy Act - This bill accelerates the payment of certain fees by nuclear utilities - including the New York Power Authority. The CBO identified the acceleration of those payments as a federal mandate on New York state government and private utilities. These bills carried over into 1998, the second session of the 105th 270 - The Council of State Governments

Federal Mandates For State Action (Note) Congress. UMRA may be the benchmark for judging congressional mandates on the states, but it may not be the only criteria. Strictly speaking, any law that affects state authority in any way could be viewed as a mandate. Laws from the first session of the 105th Congress that meet this relaxed definition include: Assisted Suicide Funding Restriction Act of 1997 (Public Law: 105-12, 04/30/97) - This Act prohibits the states from using money from certain federal block grants to pay for health-care services that help people commit suicide. Individuals with Disabilities Education Act Amendments of 1997 (Public Law: 105-17, 06/04/97) - This Act contains provisions that require states to offer voluntary mediation procedures to help parents of children with disabilities resolve disputes with public schools over educating such children. Riegle-Neal Amendments Act of 1997 (Public Law: 105-24, 07/03/97) This Act contains provisions that address state chartered banks. Basically, it declares that the laws of a host state shall apply to any out-of-state bank branch in that state to the same extent as such laws apply to a branch in the host state of an out-of-state national bank. These include laws on community reinvestment, consumer protection, fair lending, and establishment of intrastate branches. Atlantic Striped Bass Conservation Act Amendments of 1997 (Public Law: 105-146, 12/16/97) This law imposes a moratorium on fishing for Atlantic striped bass in the coastal waters of states that the Atlantic states Marine Fisheries Commission and the secretaries of Commerce and the Interior determine are not complying with the Commission s plan for managing Atlantic striped bass. The Balanced Budget Act of 1997 - This omnibus legislation contains many provisions that affect the states because it encompasses major programs such as Food Stamps, Social Security and Medicaid. The law contains both carrot and stick components for the states. Such provisions include: 1. Prohibiting states from imposing certain taxes on Medicare+Choice organizations; 2. Establishing a Medicare Rural Hospital Flexibility Program under which participating states must develop at least one rural health network in the state and at least one facility designated as a critical access hospital in accordance with prescribed guidelines; 3. Excluding some convicted criminals from Medicare and state health-care programs; 4. Amending Medicaid to require any state contracting with Medicaid managed care organizations to develop and implement a quality assessment and improvement strategy incorporating certain access standards, monitoring procedures, and other measures; Suggested State Legislation - 271

Federal Mandates For State Action (Note) 5. Requiring direct state Medicaid payment to hospitals for certain managed care enrollees. 6. Revising how revenue from certain state hospital taxes is factored into calculating the Federal share of Medicaid expenditures; 7. Requiring state Medicaid plan coverage for low-income Medicare beneficiaries whose income otherwise disqualifies them for specified Medicare benefits; 8. A provision in the new State ChildrenÂ&#x2019;s Health Insurance Program that prohibits using federal appropriations under the program to provide abortions unless they are necessary to save the life of the mother or if the pregnancy results from rape or incest; 9. Amending the Temporary Assistance for Needy Families (TANF) provisions to require states receiving certain grants to provide the Immigration and Naturalization Service with identifying information about illegal aliens; and 10. Amending the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 to require states to develop procedures to safeguard information that is obtained through the Federal Parent Locator Service. 11. Finally, from the state perspective, the second session of the 105th Congress will probably be more controversial than the first, whether one uses the CBO definition of mandates or a broader definition. This is because the states are also watching federal legislation on electricity utility deregulation, juvenile justice, tax reform, product liability, property Â&#x201C;takings,Â&#x201D; financial services, managed care and blood-alcohol requirements to determine whether drivers are intoxicated. CSG will report on these issues in the next Suggested State Legislation volume.

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Index

Cumulative Index, 1979-1999 The following cumulative index covers volumes of Suggested State Legislation since 1979 and includes the legislation through this current edition. This index uses extensive subject headings, sub-headings and cross references ( see and see also entries). Draft legislation is listed by title under appropriate subjects. Individual bills are often included under several headings, if they cover more than one topic. Specific entries are of two kinds: (1) Titles of bills followed by the year of the volume in parentheses and the page numbers. To find the text of a draft bill, you should consult the volume for the specific year listed. (2) References are also provided to parts of draft bills, by subject. These references do not list the full title of the draft bill, but cite only the year and the page numbers. All entries under subject headings are listed in the order in which they were published. An index to volumes before 1980 may be found in Volume 47 (1988). Academic records, see records management Acid rain, see conservation and the environment Adoption, see domestic relations Aged: Grandparents as Foster Parents, (1999) 112-13; abuse and neglect of elderly: Protection of the Elderly, (1983) 130-36 banking: Lifeline Banking, (1986) 143-44 environment: Senior Environmental Corps Act, (1994) 152-54 health: Long Term Care Act, (1989) 157-59; Alzheimer s Disease Assistance Act, (1989) 160-64; Adult Day Care Center Program Act, (1990) 96-98; Open Drug Formulary Act, (1990) 113-14 housing: Senior Citizens and Disabled Protected Tenancy, (1983) 96-104; (1984) 177-82; Protection for Tenants in Condominium Conversion, (1985) 35-42; (1986) 40-41; Delinquent Real Property Tax Notification Act, (1988) 38-40; Home Care Regulation, (1978) 95-102; Home Care Services, (1980) 187-98; Rights of Nursing Home Residents, (1982) 206-09; Community Services for the Elderly, (1983) 83-94; Protection of Long-Term Nursing Home Patients, (1983) 105-10; Respite Demonstration Program, (1983) 111-16; (1986) 168-78; Public Guardians for the Elderly, (1987) 140-43; Unfair Home Improvement Loans for Senior Citizens, (1997) 24-26;

Alzheimer s Care Disclosure, Nursing Home Violations (1998) 16-18 transportation: School Bus Service for the Elderly, (1983) 95 see also: state and local government - public pensions Agriculture farm credit: Agricultural Linked Deposit Act (Statement), (1988) 192; Farm Mediation and Arbitration Program Act, (1989) 165-68 farms: Farmland and Open Space, (1983) 61-74; Agricultural Area Security, (1984) 183-90; Agricultural Land Preservation Act (Statement), (1991) 90-92; Sustainable Agriculture Act, (1991) 93-95; Farm and Ranch Solid Waste Cleanup and Abatement Program, (1999) 56-60; inspection: (1981) 151-154 licenses and licensing: (1986) 198-203; State Grain Insurance Act (Statement), (1988) 282 livestock: Humane Slaughter (amendments), (1981) 151-54; Downed Animals Act, (1995) 142; Livestock Exhibitions, (1996) 307-315; Livestock Management Facilities, (1999) 171-86; Livestock Waste Management, (1999) 187-98; marketing: Grain Warehouse Failure, (1986) 18797; Farm Product Producer Lien, (1986) 20405; Organic Food Products Standards, (1987) 167-69; Agriculture: False Information,

Suggested State Legislation - 273

Index (1998) 164-166; Fertilizer, (1999) 61-71; milk and milk products: Milk Producer Security, (1986) 198-203 pest control: Pest Control Compact, (1978) 16171 see also: conservation and the environment; labor - migrant workers Air pollution, see conservation and the environment Alcohol, see drugs and alcohol; consumer protection Art, see business and commerce - copyright; culture, the arts and recreation Asbestos, see hazardous material and waste disposal Assistance for handicapped, see handicapped persons Athletics: Athlete Agent Restrictions Act, (1989) 117-19; Action for Violation of NCAA Rules, (1989) 120-24 Atomic energy, see nuclear energy Auditors, see public finance and taxation accounting and auditors Automobiles, see transportation Ballot, see election Banks and financial institutions: Reverse Annunity Mortgage Act, (1986) 40-41; Money Laundering Act (Statement), (1988) 48; Limitation on Business Transacted with Producer Controlled-Insurer Act, (1988) 104-05; Cashing of State Checks Act, (1990) 139-40; Stop Payment Orders for Cashier s, Teller s or Certified Checks, (1992) 123-24; Collateral Pool for Public Deposits Act, (1992) 127-39; Interstate Bank Branching Act, (1994) 84-89; ATM Safety Act, (1997) 16-23; Foreign Capital Depository, (1999) 72-106; funds transfer: Electronic Banking, (1983) 25884; Electronic Fund Transfer Privacy, (1986) 184-86; Direct Deposit, (1987) 181-83; Funds Transfers Act (Statement), (1992) 125-26; State Transportation Infrastructure Banks (Note), (1999) 260-61; guaranteed loans: Linked Deposit Act, (1986) 5559 liquidation of closed banks: Model Liquidation Code for Closed, Insured Banks, (1985) 13943 rules of procedure: Lifeline Banking, (1986) 14344; Bank Account Availability, (1986) 20609

274 - The Council of State Governments

securities and investments: Limitation on Business Transacted with Producer ControlledInsurer Act, (1988) 104-05; Investment Advisory Activities Act, (1989) 86-95 see also: consumer protection; insurance Birth certificates, see domestic relations - adoption; records management Blood donors, see health care Boats and boating, see transportation Bonds and notes, see public finance and taxation Budgets, see public finance and taxation Building codes, see housing, land and property Buildings, see housing, land and property; culture, the arts and recreation - historic preservation Burial sites, Desecration of Burial Sites, (1985) 101-03 Business and commerce advance notice: Advance Notice by Businesses of Cessation of Operations, (1985) 134-35 advertisements: Celebrity Rights Act, (1988) 27681 commercial law: (1981) 63-66; Uniform Commercial Code Lease Act (Note), (1988) 31-35; Money Laundering Act (Statement), (1988) 48; Shareholders Protection Act, (1988) 4957; Recreational Water Contact Facility Act, (1988) 58-61; Utility Holding Company Regulation Act (Statement), (1988) 62; Buyers Club Regulation Act, (1988) 63-67; Health Insurance Pool Act (Statement), (1988) 68; Travel Promotion Regulation Act, (1988) 69-71; Videotape Rental Future Services Contract Act (Statement), (1988) 72; Flexible Rate Limitations For Problem Insurance Markets Act, (1988) 73-76; Limitations on Cancellation and Non-Renewal of Personal Insurance Policies Act, (1988) 7782; Limitations on Cancellation and NonRenewal of Commercial Insurance Policies Act, (1988) 83-91; Authority to Activate Joint Underwriting Association Act, (1988) 92-98; Municipal Reciprocal Insurer Act, (1988) 99101; Limitation on Holdings of Non-Investment Grade Obligations Act, (1988) 102-03; Limitation on Business Transacted with Producer Controlled-Insurer Act, (1988) 10405; Financial Guaranty Insurance Act, (1988) 106-19; Insurance Holding Company System Act, (1988) 120-43; Requirement for

Index Independent Loss Reserve Certification Act, (1988) 144-45; Seizure of Impaired Insurers Act, (1988) 146-49; Unfair Claim Settlement Practices Act, (188) 150-51; Risk Retention Groups and Purchasing Groups Act, (1988) 152-68; Fair Rates for Credit Insurance Act, (1988) 169-72; Collision Damage Waiver Insurance Act, (1988) 173-77; Prohibition of Anti-competitive Behavior, (1988) 178-80; Duties of Excess Lines Brokers Act, (1988) 181-86; Prohibited Dread Disease Insurance Coverages Act, (1988) 187-88; Insurance Frauds Prevention Act, (1988) 189-91; LeasePurchase Agreement Act, (1991) 103-07; Stop Payment Orders for CashierÂ&#x2019;s, TellerÂ&#x2019;s or Certified Checks, (1992) 123-24; Funds Transfers Act (Statement), (1992) 125-26; Property Insurance Declination, Termination and Disclosure Act, (1992) 140-44; Interstate Insurance Receivership Compact, (1996) 103-22; Collection of Royalties Bill, (1996) 123-27; Insurance Fraud Act, (1996) 139-52; Uniform Tobacco Products Sales Laws, (1997) 29-31 copyrights and patents: Protection of Ownership Rights of Artists, (1985) 98; Protection of Artists Whose Work Has Been Altered, (1985) 99-100 corporate acquisitions: Corporate Takeovers (Note), (1986) 69; Corporate Shareholder Protection, (1986) 70-73; Corporate Takeover Regulation, (1986) 74-81; Corporate Takeover Disclosure, (1986) 82-90; Shareholders Protection Act, (1988) 49-57; Hospital Conversions, (1999) 131-37; development: Economic Adjustment, (1985) 13638; Business Infrastructure Development (1986) 42-47; Community Economic Development Support Act (Statement), (1988) 47; BIDCO Act, (1989) 57-81; Defense Contractor Restructuring Assistance Act, (1994) 7583; Export Trade Revolving Loan Fund Act, (1994) 96-98 employee-owned businesses: Employee Ownership Assistance, (1984) 153-60; (1985) 13638 ; Business Coordination, (1999) 20-22; small business: (1981) 109-11; Small Business Equity Corporation and Small Business Investment, (1982) 100-18; Regulation of Precious Metal Dealers, (1982) 146-49; Liens on Personal Property in Self-Service Storage, (1982) 213-17; Mold and Die Retention, (1983) 295-96; Small Business Litigation

Expenses, (1985) 125-26; Capital Loan Fund, (1986) 48-54; Linked Deposit, (1986) 55-59; Small Business Set-Aside, (1986) 65-68; Small Business Incubator, (1986) 91-95; BIDCO Act, (1989) 57-81; Self-employment Assistance, (1999) 239-42; Small Business Air Quality Assistance, (1999) 246-49; unfair trade practices: Motion Picture Fair Competition, (1981) 53-55; (1985) 111-14; Travel Promotion Regulation Act, (1988) 69-71; Videotape Rental Future Services Contract Act (Statement), (1988) 72; Seizure of Impaired Insurers Act, (1988) 146-49; Unfair Claim Settlement Practices Act, (1988) 150-51; Risk Retention Groups and Purchasing Groups Act, (1988) 152-68; Collision Damage Waiver Insurance Act, (1988) 173-77; Prizes and Gifts Act, (1992) 145-48; Prize and Sweepstakes Regulation Act, (1995) 114-17 see also: banks and financial institutions; consumer protection - motor vehicles; economic development; exports; licensing; transportation - motor vehicles Campaign finance, see elections; ethics Carnival amusement rides, see culture, the arts and recreation Carpooling, see transportation - ridesharing Cemeteries, see burial sites Charitable organizations solicitation: Solicitation of Charitable Funds, (1984) 75-81; Charitable Funds Solicitation Act, (1988) 283-91; Institutions of Public Charity, (Statement); Child abuse, see crime and criminals Child visitation, see crime and criminals Civil disorder, Crowd Control, (1982) 175-78 Clinics, see health care - hospitals and clinics Colleges, see education - universities and colleges Commerce, see business and commerce Commercial development, see business and commerce Commercial law, see business and commerce Communications: Year 2000/Y2K (Note), (1999) telecommunications: Federal Telecommunications Act of 1996 (Note), (1997) 34-39; Digital Signatures (Amendments), (1997) 75-96; Rightsof-Way: Telecommunications Providers, (1997) 97-103; Slamming and Loading, (1999) 243-45; State Internet Legislation (Note), (1999) 257-59; telefacsimile: Unsolicited Telefacsimile Advertising Act, (1990) 63-64

Suggested State Legislation - 275

Index telephone: Telephone Membership Corporation, (1983) 256-57; Universal Telephone Service Program, (1985) 72-73; Phone Rate Change Moratorium, (1986) 109-10; Telephone Rate Equity, (1987) 127-32; Cellular Radio Telephone Privacy Act, (1989) 103-06; One-Call System (Â&#x201C;Call Before You DigÂ&#x201D;), (1990) 5562; Telephone Recorded Message Services Act, (1990) 65-67; Alternate Operator Service Provider Act, (1991) 98-99; General Acute Care Hospital Interpreter Act, (1992) 45-47; Cellular Mobile Radio Communications Act (Statement), (1993) 133-34; Telephone Caller Identification Services Act, (1994) 172-75; Counterfeit Cellular Telephones, (1998) 67-70 television: Statement on Cable Television Franchises, (1983) 297; Cable TV Trespass and Larceny, (1984) 59-60; Communications Consumer Privacy, (1984) 61; Cable Subscriber Privacy Protection Act, (1990) 134-38; Alternate Operator Service Provider Act, (1991) 98-99 Community development, see growth management Community health services, see health care Comparable worth, see labor - pay equity Computer crime, see crime and criminals Conflict of interest, see ethics Conservation and the environment acid rain: Acid Precipitation, (1983) 16-17 air pollution: Reciprocal Transboundary Pollution Remedies, (1983) 18-19; Woodstove Pollution, (1986) 7-9; Chlorofluorocarbon and Halon Compounds Control Legislation (Note), (1992) 67-69; State Fleet Alternative Fuels Act, (1992) 87-89; Emissions Reduction Market System (1998) 1-9; Quarry Operation, Reclamation and Safe Closure, (1999) 22738; Small Business Air Quality Assistance (1999) 246-49; education: Environmental Education Program, (1994) 155-64 environmental protection: State Dam, (1983) 12123; Open Lands Management, (1986) 37-39; Scenic Roads Conservation, (1987) 1-4; State Flood Hazard Area Regulation Act, (1988) 1-21; Statewide Source Separation and Recycling Act (Statement), (1988) 23; State Underwater Antiquities Act, (1988) 266-75; Radon Gas Study, Monitoring, Information and Certification Program Acts, (1989) 6-10;

276 - The Council of State Governments

Ocean Resources Management Planning Act, (1990) 29-38; Promotion of Paper Bag Usage Act, (1990) 53-54; Solid Waste Management Act (Statement), (1991) 58-59; Hardto-Dispose Materials Act (Statement), (1991) 60-61; Agricultural Chemical Groundwater Protection Act, (1991) 62-75; Resources Enhancement and Protection Fund, (1991) 7684; Sanitary Landfill and Solid Waste Management Legislation (Note), (1992) 70-73; Limited Immunity for Persons Responding to Oil Spills, (1992) 81-83; Senior Environmental Corps Act, (1994) 152-54; Oilfield Site Restoration Act, (1995) 40-54; Environmental Audit Privilege and Voluntary Disclosure Act, (1995) 55-60; Environmental Regulation Commission Act, (1996) 27-32; Environmental Opportunity Zone Act, (1997) 1- 8; Aquaculture, (1998) 167-173; Vegetative Filter Strips, (1998) 174-175; Environmental Leadership Program (1999) 44-51; erosion: Coastal Construction Control Act (Statement), (1984) 33 forestry: Reforestation of Timberlands, (1983) 7582; Comprehensive Forest Resource Program Planning, (1985) 1-3; Forestry Incentives Program, (1986) 14-19 refuse disposal and recycling: Litter and Recycling, (1980) 94-105; Purchases of Recycling Paper, (1980) 106; Litter Control and Recycling, (1982) 86-92; Sanitary Landfill Closure, (1983) 44-49; (1984) 3-10; Statewide Source Separation and Recycling Act (Statement), (1988) 23; Promotion of Paper Bag Usage Act, (1990) 53-54; Plastic Container Coding System Act, (1990) 51-52; Solid Waste Management Act (Statement), (1991) 58-59; Hard-to-Dispose Materials Act (Statement), (1991) 60-61; Sanitary Landfill and Solid Waste Management Legislation (Note), (1992) 70-73; Used Oil Collection Act, (1993) 68-73; Land Recycling and Environmental Remediation Standards Act, (1996) 33-60; Conservation and Use of Sewage Effluent, (1997) 9-11; Farm and Ranch Solid Waste Cleanup and Abatement, (1999) 56-60; Nonhazardous and Nonliquid Waste Handling (Statement), (1999) 207-08; water pollution: Oil Spill Compensation and Control, (1980) 113-24; (1983) 6-15; Groundwater Management (Statement), (1985) 13; Ocean Resources Management Planning Act,

Index (1990) 29-38; Agricultural Chemical Groundwater Protection Act, (1991) 62-75; Limited Immunity for Persons Responding to Oil Spills, (1992) 81-83; Stormwater Management and Sediment Reduction Act, (1993) 87-97; Marine Sewage Pumpout Act, (1994) 151; Adopt-A-River Program Act, (1995) 6162. wetlands: Wetlands Regulation, (1985) 4-12; Freshwater Wetlands Protection Act (Statement), (1989) 1-5 see also: fish and wildlife; hazardous materials and waste; public utilities and public works water treatment Construction, building, see housing, land and property Consumer protection: (1984) 61; Money Laundering Act (Statement), (1988) 48; Recreational Water Contact Facility Act, (1988) 5861; Buyers Club Regulation Act, (1988) 6367; Health Insurance Pool Act (Statement), (1988) 68; Travel Promotion Regulation Act, (1988) 69-71; Limitations on Cancellation and Non-Renewal of Personal Insurance Policies Act, (1988) 77-82; Seizure of Impaired Insurers Act, (1988) 146-49; Charitable Funds Solicitation Act, (1988) 283-91; Radon Gas Study, Monitoring, Information and Certification Program Acts, (1989) 6-10; Lawn Care Products Application and Notice Act, (1991) 53-57; Tanning Facility Safety Standards Act, (1991) 100-02; Lease-Purchase Agreement Act, (1991) 103-07; Property Insurance Declination, Termination and Disclosure Act, (1992) 140-44; Prizes and Gifts Act, (1992) 145-48; Residential Real Estate Disclosure Act, (1993) 110-14; Psychotherapy Grievance Board Act, (1994) 13850; Riverboat Gambling Control Legislation (Note), (1995) 112-13; Prize and Sweepstakes Regulation Act, (1995) 114-17; New Assistive Devices Warranty Act, (1995) 118-22 consumer advocate: Office of Consumer Advocate, (1981) 56-62 consumer information: (1984) 161-71; AlcoholBlended Fuel Labeling, (1986) 210-11; Organic Food Products Standards, (1987) 16769; Uniform Open Dating Regulation, (1987) 170-73; Lawn Care Products Application and Notice Act, (1991) 53-57; Lease-Purchase Agreement Act, (1991) 103-07; Property Insurance Declination, Termination and Dis-

closure Act, (1992) 140-44; Prizes and Gifts Act, (1992) 145-48; Salvaged Food Act, (1996) 97-99; Ephedrine and Pseudoephedrine, (1998) 79-84 credit and creditors: Credit Services Regulation, (1986) 96-100; Credit, Charge Card, and Retail Installment Account Disclosure Acts, (1988) 292-300 credit practices: Credit, Charge Card, and Retail Installment Account Disclosure Acts, (1988) 292-300 household hazards: Uniform State Food, Drug, and Cosmetic (Statement), (1986) 217; Toxic Household Products Act, (1993) 48-51 merchandise, solicitation of: Mail Order Address Disclosure, (1985) 104; Buyers Club Regulation Act, (1988) 63-67 motor vehicles: New Motor Vehicle Warranty and Dispute Resolutions Procedures, (1985) 10510; Protection for Owners of Defective Motor Vehicles, (1985) 111-14; (1986) 210-11; Used Car Sales Protection, (1986) 212-16; Motorcycle Rider Education Act, (1988) 19699; New Motor Vehicle Warranties (Statement), (1988) 301; All-Terrain Vehicles (Statement), (1989) 101-02; Repurchased Automobile Act, (1993) 108 product safety: Uniform State Consumer Product Safety, (1987) 174-80; Product Liability Reform Act, (1989) 82-85; Lawn Care Products Application and Notice Act, (1991) 5357; Tanning Facility Safety Standards Act, (1991) 100-02; Toxic Household Products Act, (1993) 48-51 sales practices: (1982) 71-74; Plain Language Consumer Contracts, (1982) 75-78; Gasoline Price Posting, (1982) 79-80; Uniform Open Dating Regulation, (1987) 170-73; Buyers Club Regulation Act, (1988) 63-67; Travel Promotion Regulation Act, (1988) 69-71; Videotape Rental Future Services Contract Act (Statement), (1988) 72; Flexible Rate Limitations For Problem Insurance Markets Act, (1988) 73-76; Grey Market Goods Warranty Disclosure Act, (1988) 302-05; Lease-Purchase Agreement Act, (1991) 103-07; Prizes and Gifts Act, (1992) 145-48; Brokerage Real Estate Disclosure, (1999) 9-19; Slamming and Loading, (1999) 243-45; see also: hazardous materials and waste - household use Controlled substances, see drugs and alcohol

Suggested State Legislation - 277

Index Copyrights, see business and commerce Corporate acquisitions, see business and commerce Courts, Prisoner Litigation Reform, (1999) 22023; insanity defense: Statement on Insanity Defense Legislation, (1984) 57 juveniles and children: Juvenile Justice, (1980) 211-60; State Juvenile Pretrial Diversion Programs Act, (1988) 204-08; Actions by Adult Survivors of Childhood Sexual Abuse, (1991) 121-22; Visitation Dispute Resolution Act, (1992) 104-05; Youth Mentor Program, (1998) 75-78; Teen Courts, (1998) 87-91 lawyers: Interest on Lawyer Trust Accounts, (1985) 74-78; Service of Legal Papers By Alternative Methods, (1991) 115-20 public guardian: Public Guardians for the Elderly, (1987) 140-43; Revision of Attorney Guardian Ad Litem Program, (1996) 189-95; Guardianship of Minors and Estates of Minors, (1996) 199-212 rules of procedure: Uniform Audio-Visual Deposition, (1980) 206-10; (1983) 231-36; Videotaped Testimony, (1986) 134-36; Grand Jury Procedures, (1986) 137-42; Victims of Crime (Note), (1988) 209; Actions by Adult Survivors of Childhood Sexual Abuse, (1991) 12122; Battered Woman Syndrome Defense Act, (1992) 96-98; Uniform Correction of Clarification of Defamation Act, (1997) 137-141; Death Penalty: Unitary Review, (1998) 96105 tort liability and negligence: Uniform Survival and Death, (1980) 201-05; Product Liability Reform Act, (1989) 82-85; Limited Immunity for Persons Responding to Oil Spills, (1992) 81-83; State Volunteer Service Act (Statement), (1992) 106-07; SLAPP (Strategic Lawsuits Against Political Participation) Legislation (Note), (1995) 21; Civil Liability for Bias Crimes, (1995) 22-24 see also: business and commerce - small business; public finance and taxation Credit, see consumer protection; crime and criminals Crime and criminals business: Animal Fighting and Baiting Act, (1988) 24-26; Money Laundering Act (Statement), (1988) 48 child abuse and domestic violence: Domestic Violence, (1981) 30-38; Shelters for Victims of

278 - The Council of State Governments

Domestic Violence, (1982) 181-83; Child Pornography, (1983) 178-82; Prevention of Domestic Violence, (1984) 69-74; Child Visitation Program, (1986) 145-46; (1986) 153-57; State ChildrenÂ&#x2019;s Trust Fund Act, (1988) 21017; Mandatory Protective Behavior Instruction Act, (1988) 231-32; Batterers Pilot Program Act, (1990) 99-103; Actions by Adult Survivors of Childhood Sexual Abuse, (1991) 121-22; Prenatal Exposure to Controlled Substances Act, (1992) 17-19; Battered Woman Syndrome Defense Act, (1992) 9698; Domestic Violence (No-Contact) Act, (1992) 99-100; Harassment Restraining Order Act, (1992) 101-03; Child Abuse and Neglect Reporting Legislation (Note), (1995) 6869; Family Services Response System Act, (1995) 98-105 computers: Computer Crime, (1981) 41-49, 46-52; Computer Crime and Misuse, (1985) 127-29; Computer Crimes Including Offenses by Minors, (1985) 130-33; Computer Crime Civil Redress, (1986) 123-26; Comprehensive Computer Crime, (1986) 127-30 credit card theft: Financial Transaction Card Crime, (1981) 46-52 crime prevention: Missing Children Record Flagging Act, (1988) 222-24; Criminal History Record Check for Transfer of Firearms, (1991) 132-35; Motor Vehicle Theft Prevention Act, (1992) 149-52 criminal acts: (1984) 58, 59-60; Animal Fighting and Baiting Act, (1988) 24-26; Money Laundering Act (Statement), (1988) 48; Insurance Frauds Prevention Act, (1988) 189-91; Action for Sexual Exploitation by Psychotherapists, (1989) 107-09; Dangerous Dogs Act, (1989) 110-13; Replica Firearm Warning Label Act,(1990) 144; Civil Liability for Theft Act, (1990) 145; Automobile Theft and Fraud Legislation (Note), (1991) 108-14; Sex Offender Act, (1991) 123-30; Vulnerable Adults Abuse and Exploitation Registry (Statement), (1991) 131; International Terrorism, (1998) 73-74; Gross Sexual Imposition With a Controlled Substance, (1999) 114-30; Inmate Assaults with Body Fluids or Other Hazardous Substances, (1999) 138-39; Intimidating Legislative Witnesses, (1999) 14647; PerpetratorÂ&#x2019;s Assumption of Risk, (1999) 212; criminal profits: Criminal Profits Reparation,

Index (1985) 50-52; Proceeds of Stories of Felons, (1985) 53-55; Comprehensive Forfeiture, (1985) 62-71 drug racketeering: Drug Racketeering Activity Prohibitions, (1985) 58-61 fugitives: law enforcement: Automobile Theft and Fraud Legislation (Note), (1991) 108-14; Motor Vehicle Theft Prevention Act, (1992) 149-52 sexual assault: Mandatory Protective Behavior Instruction Act, (1988) 231-32; Sex Offender Act, (1991) 123-30; DNA Database and Databank Act, (1996) 184-88; Chemical Castration of Sex Offenders (Note), (1999) 2324; Conditional Release of Sex Offenders, (1999) 29-35; shoplifting: Civil Liability for Theft Act, (1990) 145 see also: criminal justice and corrections; courts; drugs and alcohol Criminal justice and corrections criminal procedure: Uniform Rules of Criminal Procedure (Statement), (1986) 131-33; Prisoner Litigation Reform, (1999) 220-23; Uniform Criminal History Records Act (Note), (1988) 218-19; Uniform Rules of Evidence Act (Amendments), (1988) 220-21; Actions by Adult Survivors of Childhood Sexual Abuse, (1991) 121-22; Battered Woman Syndrome Defense Act, (1992) 96-98; Missing Child Rapid Response Act, (1996) 181-83; Concerning Imposition of the Death Penalty, (1996) 196-98; Habeas Corpus Petitions, (1997) 110-13; DNA Database and Databank Act, (1997) 114-19; Filing Fees for Criminal Offenders, (1997) 120-22 early and work release: expungement of records: Expungement of Records, (1983) 243-46 juveniles: Juvenile Code, (1983) 183-218; State Juvenile Pretrial Diversion Programs Act, (1988) 204-08; Juvenile Offender Recidivism Reduction Act, (1994) 119-21; Juvenile Justice Legislation (Note), (1995) 1-4; Juvenile Firearms Control Legislation (Note), (1995) 5-8 parole and probation: Rights of Inmates, (1983) 237-42; Compact for the Supervision of Parolees and Probationers An Update, (1990) 123-27; Conditional Release of Sex Offenders (1999) 29-35; prisons: Community Corrections, (1980) 265-70;

Home Detention Act, (1989) 114-16; Omnibus Criminal Justice Reform Act (Statement), (1993) 149-50; Inmate Assaults with Body Fluids or Other Hazardous Substances, (1999) 138-39; rehabilitation: Pretrial Diversion, (1983) 219-20; Batterers Pilot Program Act, (1990) 99-103; Sex Offender Act, (1991) 123-30; Juvenile Offender Recidivism Reduction Act, (1994) 119-21; Criminal Justice System Substance Abuse Act, (1995) 9-13 sentencing: Model Sentencing and Corrections, (1980) 269-70; (1982) 133-45; Uniformity in Sentencing, (1983) 221-30; Alternative Sentencing, (1984) 52-56; Sex Offender Act, (1991) 123-30; Omnibus Criminal Justice Reform Act (Statement), (1993) 149-50; Alternate Incarceration Program, (1995) 14-16; Intensive Criminal Sanctions Act, (1995) 1720; Chemical Castration of Sex Offenders (Note), (1999) 23-24; Conditional Release of Sex Offenders, (1999) 29-35; temporary leave: victim rights: (1980) 265-70; Restitution and PreTrial Intervention, (1982) 133-45; Intimidation of Witnesses, (1983) 231-36; Victim Impact Statement, (1984), 50-51; Victim Notification of Offender Release, (1985) 56-57; Victims of Crime (Note), (1988) 209; VictimsÂ&#x2019; Rights Implementation Act, (1994) 122-37; Automated Victim Notification System, (1999) 7-8; see also: state and local government - police Criminal procedure, see criminal justice and corrections Culture, the arts and recreation Ticket Scalping Act, (1997) 217-19; In-line Skates Safety Requirements, (1997) 220-26 arts: Art Consignment, (1981) 63-66; Protection of Ownership Rights of Artists, (1985) 98; Protection of Artists Whose Work Has Been Altered, (1985) 99-100 carnival amusement rides: Carnival Amusement Rides Safety and Inspection, (1983) 137-44 historic preservation: State Underwater Antiquities Act, (1988) 266-75 parks: Private Lands and Public Recreation, (1980) 107-12; Trails System, (1980) 125-29; Urban Open Spaces and Recreation, (1983) 1-5; (1986) 1-6, 37-38; Recreational Improvement and Rehabilitation, (1986) 179-83; Adopt-A-Park Program Act, (1993) 74-75

Suggested State Legislation - 279

Index tourism: Tourist Information, (1980) 132-41; Travel Promotion Regulation Act, (1988) 6971 Dams and reservoirs, see conservation and the environment - environmental protection Deficit financing, see public finance and taxation - public debt Dentists, see health care Development, see growth management Developmental disabilities, see handicapped persons Disabled persons, see handicapped persons Disasters, see state and local government - emergency management Discrimination in employment, see labor Disease control, see health care Disposal of waste, see conservation and the environment; hazardous materials and waste Distressed communities, see growth management - community development Divorce, see domestic relations Domestic relations adoption: Adoptive Information (1981) 10-13; Birth Certificates for Foreign Born Adoptees, (1981) 14-19; Adult Adoptee Access to Records, (1984) 88-98; Voluntary Adoption Registry, (1984) 99-105; Access to Adoption Information Act (Statement), (1992) 108; Child Welfare Legislation (Note), (1996) 21920; Grandparents as Foster Parents, (1999) 112-13; child care: Licensing for Placement and Care of Children, (1984) 106-23; Latch-Key Program Act, (1988) 227-30; Child Care Services Act, (1989) 141-47; Child Day Care Acts, (1990) 68-85; Prevention, Early Assistance and Early Childhood Act (Statement), (1991) 4043; Tuition Assistance Program for Day Care Providers Act, (1991) 44-47; An Act Relating to Pilot After-School Programs in the Public Schools, (1997) 163-65 child custody: Awards of Custody, (1981) 7-9; Child Custody, (1986) 158-61; Non-Spousal Artificial Insemination Act, (1988) 261-65; Visitation Dispute Resolution Act, (1992) 104-05; Family Preservation Services Act, (1993) 4246; ChildrenÂ&#x2019;s Safety Centers Act, (1994) 11718; Standby Guardianship, (1999) 250-56; family planning: Pregnancy Options, (1987) 14762; Non-Spousal Artificial Insemination Act, (1988) 261-65; Prevention, Early Assistance and Early Childhood Act (Statement), (1991)

280 - The Council of State Governments

40-43; Act to Prohibit Surrogate Parenting Contracts, (1994) 112-14; Cloning, (1999) 2528; financial support: Alimony and Child Support, (1981) 3-6; Interstate Income Withholding, (1987) 133-39; Pregnancy Options, (1987) 147-62; Child Support Security Deposit Act, (1989) 148-51; Child Support Enforcement Legislation (Statement), (1994) 115-16 juveniles: Crisis Intervention Unit, (1984) 62-68 marriage: Marital Property, (1985) 79-95 see also: crime and criminals - child abuse and domestic violence; labor - housewives and homemakers Domestic violence, see crime and criminals child abuse and domestic violence Drugs and alcohol alcoholism: Alcoholism and Drug Addiction Treatment and Support Act, (1990) 118-22 boating: Alcohol Boating Safety, (1986) 131-33 narcotics: Trafficking in Controlled Substances, (1982) 152-54; Imitation Controlled Substances, (1983) 254-55; (1985) 58-61; Designer Drugs, (1987) 166; Regulation of Precursors to Controlled Substances Act, (1990) 115-17; Uniform Controlled Substances Act 1990 (Statement), (1992) 66; Sterile Needle and Syringe Exchange Program Act, (1993) 14-16; Criminal Justice System Substance Abuse Act, (1995) 9-13; Nitrous Oxide, (1997) 142-43; Controlled Substance Excise Tax Act (Statement), (1998) 71-72 treatment: Perinatal Providers - Easing the Shortage, (1992) 17-19; Sterile Needle and Syringe Exchange Program Act, (1993) 14-16 Early release, see criminal justice and correction Economic development planning: Industrial and Commercial Redevelopment, (1981) 104-08; Small Business and Local Corporation Capital Loan Program, (1981) 109-11; Enterprise Zone, (1984) 13552; (1986) 60-64, 179-83; Technology Finance Corporation, (1987) 38-41; Product Development Corporation, (1987) 59-67; State Flood Hazard Area Regulation Act, (1988) 1-21; Community Economic Development Support Act (Statement), (1988) 47; Comprehensive Planning and Land Use Regulation Act, (1990) 9-28; Local Government Transfer of Development Rights Act, (1991) 85-89; Agricultural Land Preservation Act (State-

Index ment), (1991) 90-92; Sustainable Agriculture Act, (1991) 93-95; Critical Industries Development Account, (1997) 27-28 promotion of private industry: Cooperative Economic Development, (1982) 119-25; (1986) 42-47, 48-54; Economic Revitalization Tax Credit, (1987) 48-58; Community Economic Development Support Act (Statement), (1988) 47; BIDCO Act, (1989) 57-81; Defense Contractor Restructuring Assistance Act, (1994) 75-83; Export Trade Revolving Loan Fund Act, (1994) 96-98 see also: business and commerce - small business; conservation and the environment; exports; growth management Education: Student Religious Liberty, (1999) 262-65; attendance: Homeless Child Education Act (Statement), (1992) 109 environmental education: Environmental Education Program, (1994) 155-64 exchange student: Exchange Student Placement Agency Licensing Act, (1992) 115-22 family: Family Education and Resource Center Acts, (1990) 86-88; Mandatory Educational Course on ChildrenÂ&#x2019;s Needs for Divorcing Parents - Pilot Program, (1997) 157-62 finance: State Baccalaureate Education System Trust, (1988) 233-44; Education Legislation (Note), (1991) 1-13; Private School Tuition, (1999) 224-26; loans and scholarships: Scholarships for Crucial Teaching Areas, (1984) 1-2; Liberty Scholarship Program Act, (1990) 89-95; Nursing Profession Acts, (1990) 106-12; Tuition Assistance Program for Day Care Providers Act, (1991) 44-47; American Indian Endowed Scholarship Program Act, (1992) 112-14; Intervention/Prevention Grants for Academically At-Risk Children (North Carolina), (1996) 223-28; Intervention/Prevention Grants for Academically At-Risk Children (Utah), (1996) 229-30 planning: Educational Policy Planning, (1982) 210-12; Schools for the Future Act, (1988) 245-54; Nursing Profession Acts, (1990) 10612 preschool: Prevention, Early Assistance and Early Childhood Act (Statement), (1991) 40-43; Parents as Teachers Grant Program Act, (1993) 55-58 reform: Education Legislation (Note), (1991) 1-

13; Educational Act for the 21st Century (Statement), (1993) 52-54; Improvement of Student Achievement Act (Statement), (1995) 106-08; School Improvement Act (Statement), (1996) 221-22; Home School Interscholastic Activities, (1998) 136-137 special: Special Education Mediation, (1998) 108112 teacher training: Information Technology Education, (1987) 163-65; Mandatory Protective Behavior Instruction Act, (1988) 231-32; Tuition Assistance Program for Day Care Providers Act, (1991) 44-47; School Discipline (Note), (1998) 113-114; Alternative Teacher Certification, ( 1999) 1-6; universities and colleges: Higher Education Foreign Gift Disclosure, (1986) 162-63; State Baccalaureate Education System Trust, (1988) 233-44; College and University Security Information Act, (1990) 128-31; College Student Immunization Act, (1992) 63-65; Education of the Visually Impaired Act (Statement), (1995) 109; Prepaid Tuition Plans and College Savings Plans (Note), (1998) 115-115-117; Higher Education Performance Standards, (1998) 118-135 vocational: Private Vocational School Regulation Act (Statement), (1992) 110-11; Youth Apprentice Pilot Program Act, (1994) 105-07; Youth Apprenticeships Legislation (Note), (1995) 110-11; Tax Credits for School-to-Career Internships, (1999) 266-67; see also: public finance and taxation; records management - academic Elderly, see aged Elections campaign finance: Campaign Finance, Ethics and Lobbying Regulation (Statement), (1992) 9092; Campaign Finance Legislation (Note), (1995) 14447 election law: Act to Extend Qualifying Deadlines for Elections, (1993) 151 voting: Submarine Ballot, (1986) 111-13; Handicapped Voting, (1986) 114-22; Statewide Voter Registration and Outreach Act, (1988) 200-03; Mail Ballot Elections, (1997) 104-9 Electronic banking, see banks and financial institutions - funds transfer Emergency management, see state and local government Employees, see state and local government;

Suggested State Legislation - 281

Index labor Employment, see labor Energy conservation: State Energy Resources (Statement), (1982) 13-36; Statewide Source Separation and Recycling Act (Statement), (1988) 23; State Fleet Alternative Fuels Act,(1992) 87-89; Net Energy Metering, (1998) 9-11; Guaranteed Energy Contracts, (1998) 12-15 electricity: Utility Construction Review Act, (1991) 96-97; Electricity Deregulation (Note), (1998) 45-48 energy efficiency rating: Building Efficiency Rating Act, (1996) 61-65 natural gas: Natural Gas Service Expansion Act, (1995) 66-67 oil and gasoline: (1982) 79-80; Standby Petroleum Set-Aside, (1984) 172-87; (1986) 210-11; Aboveground Storage Tank Act, (1992) 8486; Used Oil Collection Act, (1993) 68-73 solar energy: Solar Energy Systems Encouragement, (1980) 78-85; Solar Development Commission, (1980) 86-93 see also: nuclear energy Environment, see conservation and the environment Environmental protection, see conservation and the environment Equal access, see handicapped persons Erosion, see conservation and the environment Ethics, Campaign Finance, Ethics and Lobbying Regulation (Statement), (1992) 90-92 Euthanasia, see health care - right to die Explosives and fireworks, Paramilitary Training Act, (1983) 128-29 see also: hazardous materials and waste Exports council: State Export Council, (1985) 123-24 development: Export Development Authority and Assistance, (1985) Family, see domestic relations Farm credit, see agriculture Farms, see agriculture Finance, public, see public finance and taxation Financial emergencies, local, see public finance and taxation - fiscal crises Financial institutions, see banks and financial institutions Firearms, see guns, firearms and other weapons Firefighters, see hazardous materials - rules and

282 - The Council of State Governments

regulations; state and local government Fireworks, see explosives and fireworks Fiscal crises, local, see public finance and taxation Fish and wildlife: State Fishing Enhancement Act (Statement), (1988) 22 conservation: Endangered Species, (1980) 74-77; State Resources Reinvestment, (1987) 5-13; State Fishing Enhancement Act (Statement), (1988) 22; Act to Ban the Exportation and Importation of Wildlife, (1993) 7686 habitat: Fish Habitat Improvement, (1984) 19197 Flammable liquids, see hazardous materials and waste cleanup - disposal Food, drug, and cosmetics, see consumer protection - household hazards Food stamps, see public assistance - welfare Forestry, see conservation and the environment Funds transfer, see banks and financial institutions Games of chance: Riverboat Gambling Act, (1996) 282-306 see also business and commerce - unfair trade practices Garbage, see conservation and the environment - refuse disposal Gifted, education of, see education - special Gold and silver dealers, see business and commerce - small business Good samaritan laws, see hazardous materials - cleanup; public assistance - food Governors, see state and local government - executive branch Growth management community development: (1980) 63-73; Commercial Redevelopment Districts, (1981) 96-103; (1981) 104-08; Neighborhood Assistance, (1982) 130-32; Summary from States and Distressed Communities Study, (1985) 14951; (1986) 60-64; State Flood Hazard Area Regulation Act, (1988) 1-21; Comprehensive Planning and Land Use Regulation Act, (1990) 9-28; Local Government Transfer of Development Rights Act, (1991) 85-89 land development: (1984) 183-90; (1986) 37-41, 179-83; State Flood Hazard Area Regulation Act, (1988) 1-21; Comprehensive Planning and Land Use Regulation Act, (1990) 9-28; Local Government Transfer of Development Rights Act, (1991) 85-89; Agricultural Land

Index Preservation Act (Statement), (1991) 90-92; Smart Growth, (1998) 35-43; Land Bank Authorities, (1999) 148-53; planning: Comprehensive Planning and Land Use Regulation Act, (1990) 9-28; Local Government Transfer of Development Rights Act, (1991) 85-89; Agricultural Land Preservation Act (Statement), (1991) 90-92 urban development: (1982) 130-32; (1983) 1-5; Product Development Corporation, (1987) 59-67; State Flood Hazard Area Regulation Act, (1988) 1-21; Development Impact Fee Act, (1993) 115-23; Urban Area Revitalization (Statement), (1998) 44 zoning: State Aviation Development Act (Statement), (1988) 194 see also: economic development; housing, land and property; transportation - airports Guns, firearms and other weapons control: Gun Control, (1983) 124-27; Paramilitary Training, (1983) 128-29; Metal Piercing Bullets, (1984) 58; Criminal History Record Check for Transfer of Firearms, (1991) 13235; State Concealed Weapons Laws (Note), (1998) 85-86 replica: Replica Firearm Warning Label Act, (1990) 144 Handicapped, education of, see education special Handicapped persons, Handicapped Individuals Rental Discrimination Act, (1988) 27 assistance: Assistance to Handicapped Child, (1986) 168-78; Community Care for Frail or Impaired Adults (1987) 144-46; Handicapped Individuals Rental Discrimination Act, (1988) 27; Prevention, Early Assistance and Early Childhood Act (Statement), (1991) 4043; Service Dogs, (1998) 106-107 developmental disabilities: Community Care for Frail or Impaired Adults, (1987) 142-44; SelfSufficiency Trust Fund Act, (1990) 104-05; Developmental Disabilities Services Acts, (1994) 54-64; Education of the Visually Impaired Act (Statement), (1995) 109 equal access: Equal Access to Public Facilities, (1982) 169-74; Handicapped Voting, (1986) 114-22; Handicapped Individuals Rental Discrimination Act, (1988) 27; Waiving Construction Permit Fees to Promote Accessibility, (1998) 32-34 legal rights: Legal Rights for the Mentally Dis-

abled, (1984) 82-87; Handicapped Individuals Rental Discrimination Act, (1988) 27; Delinquent Real Property Tax Notification Act, (1988) 38-40 prevention: Retardation Prevention and Community Services, (1982) 184-202 subsidies: Subsidy Program for Qualified Parents, (1982) 203-05 see also: education - special; aged - housing Hazardous materials and waste cleanup: Hazardous Waste Cleanup Â&#x201C;Good Samaritan,Â&#x201D; (1983) 50-51; Hazardous Waste Response Fund (1984) 24-29; Underground Storage Tanks Fund Acts - Alternatives for the States, (1989) 11-29; Hazardous Sites Cleanup Act (Statement), (1992) 78-80; Voluntary Remediation of Hazardous Substances and Petroleum Act, (1993) 59-67; Voluntary Hazardous Waste Cleanup Act (Statement), (1995) 63-65; Expedited Remedial Action Reform Act, (1996) 1-26 disposal: Hazardous Waste Site Approval and Selection, (1982) 39-55; Radioactive Waste Storage, (1984) 11-22; Asbestos Application, Removal, and Encapsulation, (1986) 10-13; Aboveground Flammable Liquids Storage, (1986) 20-22; Underground Storage Tank Regulation (Statement), (1986) 23-24; Underground Storage Tank, (1987) 15-22; Toxic Catastrophe Prevention, (1987) 23-32; Underground Storage Tanks Fund Acts - Alternatives for the States, (1989) 11-29; Hardto-Dispose Materials Act (Statement), (1991) 60-61 household use: Toxic Household Products Act, (1993) 48-51 reduction: Hazardous Waste Reduction Model Act, (1990) 39-50 rules and regulations: Toxic Substance Information, (1984) 30-32; Hazardous Waste Management Service, (1985) 14-18; Fire Service Right to Know, (1985) 19-21; Hazardous Chemical Employee Information, (1985) 2227; Community Right-to-Know, (1986) 25-35; Underground Storage Tank, (1987) 15-22; Toxic Catastrophe Prevention, (1987) 23-32; Radon Gas Study, Monitoring, Information and Certification Program Acts, (1989) 6-10; Hazardous Waste Reduction Model Act, (1990) 39-50; Hard-to-Dispose Materials Act (Statement), (1991) 60-61; Aboveground

Suggested State Legislation - 283

Index Storage Tank Act, (1992) 84-86; Ozone Oversight Act, (1997) 12-15; Nonhazardous and Nonliquid Waste Handling (Statement), 20708; see also: conservation and the environment; consumer protection - household hazards; explosives and fireworks Health care: AIDS Legislation (Note), (1989) 152-56; Alzheimer s Disease Assistance Act, (1989) 160-64; Adult Day Care Center Program Act, (1990) 96-98; Open Drug Formulary Act, (1990) 113-14; Mandated Benefits Review Procedures Act, (1991) 14-18; Access to Health Care (Note), (1992) 1-5; Breast Cancer Education, Detection and Screening Standards Acts, (1992) 6-16; Prenatal Exposure to Controlled Substances Act, (1992) 1719; Perinatal Providers, Easing the Shortage, (1992) 20-27; Home Care Volunteer Program for Maternal and Child Health, (1992) 28-29; Home Dialysis Agencies Licensing Act, (1992) 30-44; General Acute Care Hospital Interpreter Act, (1992) 45-47; Uniform Disciplinary Act for Regulated Health Professions (Statement), (1992) 48-49; Health Care Decisions and Treatment: Provisions for Durable Power of Attorney and Health Care Agents (Note), (1992) 50-53; Insect Sting Emergency Treatment Act, (1992) 6162; College Student Immunization Act, (1992) 63-65; Health Care Surrogate Act, (1993) 33-41; Homeless Minors Health Care Consent Act (Statement), (1993) 47; Health Care Legislation (Note), (1993) 1-5; Health Insurance Reform Legislation (Note), (1994) 1-11; Prioritization of Health Care Services Act, (1994) 12-23; Health Care Services Utilization Review Regulation Act, (1994) 3139; Health Insurance Rates and Refunds Act, (1994) 40-42; Uniform Billing Format Act, (1994) 43-45; Maternity Care Access Act, (1994) 46-50; Breast Feeding Rights Act, (1994) 51; Mental Health Treatment Proxy Act, (1994) 52-53; Health Care Reform Legislation (Note), (1995) 26-28; Assisted Reproductive Technology Act, (1995) 29-33; Written Summary of Breast Cancer Treatment Alternatives Act, (1995) 34-35; Children s Mental Health Integrated Fund (Statement), (1995) 36-38; Dosage Form Definition Act, (1995) 39; Regulation of Health Care and Mental Health Services, (1996) 251-75;

284 - The Council of State Governments

Statewide Immunization Program, (1996) 276-79; Health Care Legislation (Note), (1996) 277-81; Health Care - Elderly and Disabled Adults - Pilot Long-term Care Program, (1997) 144-56; Health Services Plans - Dispute Resolution, (1997) 174-78; Alzheimer s Care Disclosure, Nursing Home Violations, (1998) 16-18; Prenatal Care - HIV Testing (Note), (1998) 138-139; Health (Note), (1998) 140-144; Unauthorized Use of Sperm, Ova or Embryos, (1998) 145-146; Child Health Insurance (Note), (1998) 147; Telemedicine, (1998) 148-156; Cloning, (1999) 25-28; Genetic Information Privacy, (1999) 10711; Premium Sharing, (1999) 213-19; assistance: Medicaid Reform, (1986) 168-78; Long Term Care Act, (1989) 157-59; Prevention, Early Assistance and Early Childhood Act (Statement), (1991) 40-43; Access to Health Care (Note), (1992) 1-5; Health Care Legislation (Note), (1993) 1-5; Health Insurance Reform Legislation (Note), (1994) 1-11; Prioritization of Health Care Services Act, (1994) 12-23; State Health Program Act, (1994) 24-30; Medical Savings Account Act, (1996) 231-34 blood donors: Minor s Consent to Donate Blood, (1981) 20; Blood Safety Act, (1993) 29-30 cost containment: State Health Services Cost Review Commission, (1981) 29; (1982) 17980; Health Insurance Pool Act (Statement), (1988) 68; Open Drug Formulary Act, (1990) 113-14; Access to Health Care (Note), (1992) 1-5; Health Care Legislation (Note), (1993) 1-5; Health Insurance Reform Legislation (Note), (1994) 1-11; Health Care Reform Legislation (Note), (1995) 26-28 dentists: Dental Practice, (1980) 164-86 disease control: Blood Test, (1981) 21-22; Recreational Water Contact Facility Act, (1988) 5861; Infectious Waste Storage, Treatment and Disposal Acts, (1989) 30-41; AIDS Legislation (Note), (1989) 152-56; College Student Immunization Act, (1992) 63-65; Infectious Waste Act, (1992) 74-77; Tuberculosis-Specific Control Measures, (1997) 206-16 education: Breast Cancer Education, Detection and Screening Standards Acts, (1992) 6-16; Hysterectomy Information Act, (1993) 31-32; Written Summary of Breast Cancer Treatment Alternatives Act, (1995) 34-35; Obesity, (1999) 209-11;

Index hereditary diseases: Hereditary Disorders, (1984) 124 home health care: Home Health Care Licensing, (1986) 164-67; Home Care Volunteer Program for Maternal and Child Health, (1992) 28-29; Home Dialysis Agencies Licensing Act, (1992) 30-44 hospices: Hospice Program Licensing, (1985) 4345 hospitals and clinics: General Acute Care Hospital Interpreter Act, (1992) 45-47; Hospital Cooperation Act, (1996) 235-41; Hospital Conversions, (1999) 131-37; laboratories: Clinical Laboratory Billing Information, (1981) 29; Confidentiality of Genetic Tests, (1999) 36-40; Limited-Service Rural Hospitals, (1999) 162-70; organ donors: Anatomical Donations by Minors Act, (1991) 37-39; Organ Procurement and Storage Act, (1992) 54-60; Amendments to the Uniform Anatomical Gift Act, (1997)12336 physicians: Perinatal Providers - Easing the Shortage, (1992) 20-27; Malpractice Insurance for Retired Volunteer Physicians Act, (1993) 17-18; Medical Practices Diversion Program, (1996) 246-50; Physician Discipline and Physician Information (Note), (1998) 1920 professionals: State Health Manpower Projects, (1983) 285-92; Emergency Medical Services Regulation and Licensing Act (Statement), (1988) 255; Emergency Medical Services Organization Act (Statement), (1988) 260; Nursing Profession Acts, (1990) 106-12; Perinatal Providers - Easing the Shortage, (1992) 20-27; Uniform Disciplinary Act for Regulated Health Professions (Statement), (1992) 48-49 records: Health Care Provider Records Access Act (Statement), (1988) 259; Disclosure of Health Care Records Act, (1993) 19-28 right to die: Uniform Brain Death, (1980) 199200; Do Not Resuscitate, (1997) 181-89 smoking: Prohibition of Employment Discrimination on Basis of Smoking, (1991) 34-35 treatment: DES-Related Disorders, (1983) 117-18; Insect Sting Emergency Treatment, (1983) 119-20; Hypertension Control Program, (1984); Vietnam Veterans Health Treatment and Assessment, (1985) 46-49; Non-Spousal Artificial Insemination Act, (1988) 261-65;

Prenatal Exposure to Controlled Substances Act, (1992) 17-19; Home Dialysis Agencies Licensing Act, (1992) 30-44; Health Care Decisions and Treatment: Provisions for Durable Power of Attorney and Health Care Agents (Note), (1992) 50-53; Insect Sting Emergency Treatment Act, (1992) 61-62; Intractable Pain Treatment Act (1997) 166-68; Emergency Medical Services for Children, (1997) 169-73; Experimental Medical Care Disclosure (1999) 52-55; Health maintenance organizations, see health care Hereditary diseases, see health care Historic preservation, see culture, the arts and recreation Home care, see aged - nursing homes Home purchases, see housing, land and property - real estate transactions Hospices, see health care Hospitals, see health care Housewives, see labor Housing, land and property building construction and design: Mandatory Sprinkler Systems, (1982) 81-85; (1982) 16974; Fire Sprinkler Systems, (1987) 33-37; Equitable Restrooms Act, (1993) 135-37 building renovation: Public Buildings Cooperative, (1980) 63-73; (1984) 177-82; Special User Housing Rehabilitation Program Act, (1988) 41-44; Abandoned Housing Rehabilitation, (1989) 54-56; Equitable Restrooms Act, (1993) 135-37; Lead Exposure, (1999) 154-61; development: Urban Neighborhood Redevelopment, (1987) 42-47; Comprehensive Planning and Land Use Regulation Act, (1990) 9-28; Local Government Transfer of Development Rights Act, (1991) 85-89; Development Impact Fee Act, (1993) 115-23; State Housing Initiatives Partnerships, (1995) 127-41; Land Use Mediation, (1998) 27-31; Land Bank Authorities, (1999) 148-53; emergency assistance: Emergency Assistance to Homeowners, (1985) 31-34 home improvement: Housing and Neighborhood Conservation, (1980) 63-73; Energy Credit Program, (1982) 13-36; Urban Neighborhood Redevelopment, (1987) 42-47 landlords and tenants: Mobile Home Park Bill of Rights, (1981) 118-24; Handicapped Individuals Rental Discrimination Act, (1988) 27

Suggested State Legislation - 285

Index manufacture: Common Interest Ownership (Statement), (1986) 36 personal property: (1982) 213-17; Uniform Statutory Rule Against Perpetuities Act (Note), (1988) 28-30; Private Property Protection Act, (1995) 123-26 public lands: (1981) 140-41; Public Lands, (1982) 56-70; (1986) 179-83 real estate transactions: Alternate Mortgage, (1981) 125-39; Uniform Real Estate TimeShare (Statement), (1981) 161-62; Delinquent Real Property Tax Notification Act, (1988) 38-40; Residential Real Estate Disclosure Act, (1993) 110-14; Lease-to-Own Housing Program Act, (1994) 165-68; Brokerage Real Estate Disclosure, (1999) 9-19; see also: growth management; public finance and taxation; public assistance - housing; aged housing Information systems, State Internet Legislation (Note), 257-59; privacy: Uniform Motor Vehicle Records Disclosure Act, (1997) 227-31; Public Access to Legislative Documents, (1998) 49-51; Use of Email, (1998) 157-163; see also: banks and financial institutions; crime and criminals Infrastructure bank, see public finance and taxation Inspector general, see public finance and taxation Insurance certification of insurers: Surplus Lines Insurance, (1987) 68-78 fire: Fire Insurance Policy Proceeds Lien, (1983) 247-49; Anti-Arson Applications, (1983) 25053 group: (1980) 3-11, 142-48; Conversion of Group Health Insurance, (1981) 23-28; Health Insurance Pool Act (Statement), (1988) 68; Municipal Reciprocal Insurer Act, (1988) 99-101; Fair Rates for Credit Insurance Act, (1988) 169-72; Access to Health Care (Note), (1992) 1-5; Health Care Legislation (Note), (1993) 1-5; Health Insurance Reform Legislation (Note), (1994) 1-11 insurance companies: Limitations on Cancellation and Non-Renewal of Commercial Insurance Policies Act, (1988) 83-91; Municipal Reciprocal Insurer Act, (1988) 99-101; Limitation on Holdings of Non-Investment Grade Obligations Act, (1988) 102-03; Limitation on

286 - The Council of State Governments

Business Transacted with Producer Controlled-Insurer Act, (1988) 104-05; Financial Guaranty Insurance Act, (1988) 106-19; Insurance Holding Company System Act, (1988) 120-43; Seizure of Impaired Insurers Act, (1988) 146-49; Unfair Claim Settlement Practices Act, (1988) 150-51; Prohibition of Anti-Competitive Behavior Act, (1988) 17880; Duties of Excess Lines Brokers Act, (1988) 181-86; Property Insurance Declination, Termination and Disclosure Act, (1992) 140-44; Insurance Claims for Excessive Charges Act, (1993) 109; Health Insurance Rates and Refunds Act, (1994) 40-42; Experimental Medical Care Disclosure (1999) 5255; medical: Health Insurance Continuation and Conversion, (1980) 142-48; Comprehensive Health Insurance, (1980) 149-63; Second Medical Opinion, (1982) 179-80; Health Insurance Pool Act (Statement), (1988) 68; Prohibited Dread Disease Insurance Coverages Act, (1988) 187-88; Mandated Benefits Review Procedures Act, (1991) 14-18; Access to Health Care (Note), (1992) 1-5; Health Care Legislation (Note), (1993) 1-5; Health Insurance Reform Legislation (Note), (1994) 1-11; Health Insurance Rates and Refunds Act, (1994) 40-42; Health Care Reform Legislation (Note), (1995) 26-28; Health Insurance Coverage for Off-Label Uses, (1996) 242-45; Genetic Discrimination, (1997) 190-92; Individual Health Insurance Market Reform, (1997) 193-205; Child Health Insurance (Note), (1998); Premium Sharing, (1999) 21319; motor vehicle: Collision Damage Waiver Insurance Act, (1988) 173-77; Motor Vehicle Liability Insurance Enforcement Act, (1994) 169-71 property: Property Insurance Declination, Termination and Disclosure Act, (1992) 140-44; Hurricane Relief Fund Act, (1996) 128-38 sales practices: Insurance Policy Language Simplification, (1982) 71-74; Flexible Rate Limitations For Problem Insurance Markets Act, (1988) 73-76; Limitations on Cancellation and Non-Renewal of Personal Insurance Policies Act, (1988) 77-82; Authority to Activate Joint Underwriting Association Act, (1988) 92-98 state: State Risk Management, (1987) 92-100;

Index Municipal Reciprocal Insurer Act, (1988) 99101; State Grain Insurance Act (Statement), (1988) 282 Intergovernmental relations: state/federal: Federal Mandates Act, (1996) 15360; Federal Mandates for State Action (Note), (1992) 153-59; Federal Mandates for State Action (Note), (1993) 152-56; Federal Mandates for State Action (Note), (1994) 179-85; Federal Mandates for State Action (Note), (1995) 150-54; Federal Mandates (Note), (1996) 171-73; Federal Mandates for State Action (Note), (1997) 63-65; Federal Mandates for State Action (Note), (1998) 52-60; Federal Mandates for State Action (Note), (1999) 270-72; Public Access Across Federal Lands, (1996) 176-80; State Appropriation and Budgeting of Federal Funds, (1980) 1214; Federal Land Acquisition, (1981) 140-41; state/local: State and Local Government Pooled Insurance, (1980) 3-11; State Compensation to Local Governments for State-Owned Property, (1980) 49-55; (1981) 88-95; Missing Children Record Flagging Act, (1988) 22224; Comprehensive Planning and Land Use Regulation Act, (1990) 9-28; Local Government Mandate Relief Legislation (Note), (1994) 176-78; Local Government Service Delivery Systems, (1999) 199-206; state/state: Intergovernmental Tax Cooperation, (1980) 12-14; Interstate Income Withholding, (1987) 133-39 see also: state and local government Interstate agreements, see intergovernmental relations - state/state Inventions, see business and commerce - copyrights and patents Investments, see banks and financial institutions; public finance and taxation Itinerant vendors, see public finance and taxation Judicial branch, see courts Juries, see courts Labor discrimination: Prohibition of Employment Discrimination on Basis of Smoking, (1991) 3435; Genetic Screening in the Workplace (Note), (1991) 36; Act Prohibiting Discrimination Against Employees Participation in Legal Activities During Non-Working Hours, (1994) 108-11; Genetic Screening Prohibition Act (Statement), (1995) 25

employees: Right to Inspect Personnel Files, (1983) 293-94; Hazardous Chemical Employee Information, (1985) 22-27; Family Leave Act, (1989) 135-40; State Employee Leave Transfer Program Act, (1991) 19-22; Employee Leasing Company Registration Act, (1993) 124-27; Multiracial Classification Act, (1997) 32-3; Defined Contribution Plans, (1999) 41-43; employment incentives: (1984) 153-60; Aid Recipient Employment Incentive Act, (1988) 4546; Community Economic Development Support Act (Statement), (1988) 47 housewives and homemakers: Displaced Homemakers, (1981) 16-19 migrant workers: Seasonal Farm Labor and Migrant Agricultural Workers, (1983) 145-68; (1984) pay equity: Pay Equity for State Employees, (1985) 147-48 training programs: Civilian Conservation Work Program, (1985) 136-38; State Conservation Corps, (1986) 1-6; Youth Corps, (1986) 6064; Aid Recipient Employment Incentive Act, (1988) 45-46; Community Economic Development Support Act (Statement), (1988) 47; Service Corps Program Act, (1993) 143-48; Workforce Development Partnership Program (Statement), (1994) 99-101 unemployment compensation: State Employables Program, (1981) 16-19; (1982) 161-63; Shared Work Unemployment Compensation, (1982) 164-65; Aid Recipient Employment Incentive Act, (1988) 45-46 unions: Public Sector Labor-Management Cooperation Act, (1994) 102-04 workers compensation: Workers Compensation Reform Legislation (Note), (1991) 23-33 see also: state and local government - employees Land, see housing, land and property Land development, see growth management Land use planning, see growth management land development Landfills, see conservation and the environment - refuse disposal and recycling Landlords and tenants, see housing, land and property Law and lawyers, see courts; criminal justice and corrections Law enforcement, see crime and criminals Legal services, see courts - lawyers

Suggested State Legislation - 287

Index Licensing, enforcement and regulation business: Business Regulation and Licensing System, (1981) 112-15; Business Regulation and Licensing, (1981) 116-17; Money Laundering Act (Statement), (1988) 48; Recreational Water Contact Facility Act, (1988) 58-61; Utility Holding Company Regulation Act (Statement), (1988) 62; BuyersÂ&#x2019; Club Regulation Act, (1988) 63-67; Travel Promotion Regulation Act, (1988) 69-71; Videotape Rental Future Services Contract Act (Statement), (1988) 72; Flexible Rate Limitations For Problem Insurance Markets Act, (1988) 73-76; Limitations on Cancellation and NonRenewal of Personal Insurance Policies Act, (1988) 77-82; Limitations on Cancellation and Non-Renewal of Commercial Insurance Policies Act, (1988) 83-91; Authority to Activate Joint Underwriting Association Act, (1988) 92-98; Municipal Reciprocal Insurer Act, (1988) 99-101; Limitation on Holdings of Non-Investment Grade Obligations Act, (1988) 102-03; Limitation on Business Transacted with Producer Controlled-Insurer Act, (1988) 104-05; Financial Guaranty Insurance Act, (1988) 106-19; Insurance Holding Company System Act, (1988) 120-43; Requirement for Independent Loss Reserve Certification Act, (1988) 144-45; Seizure of Impaired Insurers Act, (1988) 146-49; Unfair Claim Settlement Practices Act, (1988) 150-51; Risk Retention Groups and Purchasing Groups Act, (1988) 152-68; Fair Rates for Credit Insurance Act, (1988) 169-72; Collision Damage Waiver Insurance Act, (1988) 173-77; Prohibition of Anti-Competitive Behavior Act, (1988) 178-80; Duties of Excess Lines Brokers Act, (1988) 181-86; Prohibited Dread Disease Insurance Coverages Act, (1988) 187-88; Insurance Frauds Prevention Act, (1988) 189-91; Model Veterinary Drug Code, (1989) 46-53; Check Cashing Services Act, (1990) 141-43; Utility Construction Review Act, (1991) 96-97; Health Care Services Utilization Review Regulation Act, (1994) 3139; Riverboat Gambling Control Legislation (Note), (1995) 112-13; Business Coordination, (1999) 20-22; Environmental Leadership Program, (1999) 44-51; Fertilizer, (1999) 61-71; child care: Licensing for Placement and Care of Children Act, (1984) 106-23

288 - The Council of State Governments

education: Private Vocational School Regulation Act (Statement), (1992) 110-11; Exchange Student Placement Agency Licensing Act, (1992) 115-22 health: Reorganization of Occupational and Professional Regulation, (1983) 285-92; Human Embryos Act, (1988) 256-58; Radon Gas Study, Monitoring, Information and Certification Program Acts, (1989) 6-10; Model Veterinary Drug Code, (1989) 46-53; Breast Cancer Education, Detection and Screening Standards Acts, (1992) 6-16; Home Dialysis Agencies Licensing Act, (1992) 30-44; Organ Procurement and Storage Act, (1992) 54-60; Health Care Services Utilization Review Regulation Act, (1994) 31-39; Registration of Durable Powers of Attorney for Health Care, (1997) 179-80; Confidentiality of Genetic Tests, (1999) 36-40; Experimental Medical Care Disclosure, (1999) 52-55; Foreign Capital Depository, (1999) 72-106; professions: (1983) 285-92; Emergency Medical Services Regulation and Licensing Act (Statement), (1988) 255; Emergency Medical Services Organization Act (Statement), (1988) 260; Nursing Profession Acts, (1990) 106-12; Uniform Disciplinary Act for Regulated Health Professions (Statement), (1992) 48-49 see also: agriculture; business and commerce - security guards; health care - hospices; natural resources - mining Litter, see conservation and the environment refuse Livestock, see agriculture Loans, see banks and financial institutions Local government, see state and local government Marital property, see domestic relations - marriage Marriage, see domestic relations Migrant workers, see labor Mines and minerals, see natural resources Missing persons: Missing Persons, (1986) 152 children: Intergovernmental Missing Child Recovery, (1986) 147-51; Missing and Exploited Children, (1986) 153-57; Missing Children Record Flagging Act, (1988) 222-24 Mortgages: Reverse Annuity Mortgage, (1986) 40-41 see also: housing, land and property Motor vehicles, see consumer protection; trans-

Index portation Native Americans, American Indian Endowed Scholarship Program Act, (1992) 112-14 see also: burial sites Natural resources mines and minerals: Uniform Dormant Mineral Interests Act (Note), (1988) 36-37 Negligence, see courts - tort liability and negligence Noise pollution, see conservation and the environment Nominations, see elections Nuclear energy decommissioning: Decommissioning Nuclear Power Plants, (1983) 52-60 environmental protection: Environmental Radiation Protection, (1980) 130-32 radiation control: Regulations for the Control of Radiation (Statement), (1978) 185; Radiation Control, (1983) 27-43 see also: hazardous materials and waste - disposal Nursing homes, see aged Ombudsman, see state and local government public relations One man-one vote, see elections - reapportionment Paramilitary training, see guns, firearms and other weapons Parks, see culture, the arts and recreation Parole, see criminal justice and corrections Pay equity, see state and local government Pensions, see banks and financial institutions; state and local government Personal property, see housing, land and property Pest control, see agriculture Pesticides, see agriculture Physicians, see health care Plea bargaining, see criminal justice and corrections - sentencing Police, see state and local government Pollution, see conservation and the environment Pornography, see crime and criminals - child abuse Postal savings, see banks and financial institutions Prepaid medical services, see health care health maintenance organizations Preschool education, see education Prevention of retardation, see handicapped persons Primaries, see elections

Prisons, see criminal justice and corrections Privacy, see information systems Probate, see wills Probation, see criminal justice and corrections Procurement, see state and local government purchasing Product safety, see consumer protection; courts; insurance Property, see domestic relations - marriage; housing, land and property; public finance and taxation Prosecutors, see criminal justice and corrections Protected tenancy, see aged - housing Public assistance employment: Aid Recipient Employment Incentive Act, (1988) 45-46; Welfare Reform Act (Statement), (1988) 225; Family Independence Act (Statement), (1988) 226; Homeless Employment Program, (1989) 125-28; Family Transition Act, (1995) 70-82; Work-NotWelfare Pilot Program Act, (1995) 83-97; Self-employment Assistance, (1999) 239-42; food: Food Bank Good Samaritan (1984) 48-49; Food Donation Liability Legislation (Note), (1994) 70-74 homeowners: Emergency Assistance to Homeowners, (1985) 31-34; Revenue Annuity Mortgage, (1986) 40-41; Home Ownership Made Easy Act, (1991) 48-52; Lease-to-Own Housing Program Act, (1994) 165-68 housing: Housing Rehabilitation Program, (1984) 177-82; Low-Income Housing Tax Credit Act, (1989) 96-100; Housing Legislation (Note), (1990) 1-5; Preservation of Moderate- and Low-income Housing Act, (1990) 6-8; Leaseto-Own Housing Program Act, (1994) 16568; Increasing Homeownership Opportunities for Police, (1998) 92-95 insurance or security funds: (1986) 187-97, 198203 welfare: Administrative Procedures Act - Food Stamp Emergency Clause, (1980) 261; Welfare Reform Act (Statement), (1988) 225; Family Independence Act (Statement), (1988) 226; Individual Development Accounts Act, (1996) 213-18 see also: courts - public guardians; health care Public buildings, see housing, land and property Public debt, see public finance and taxation Public employees, see state and local government

Suggested State Legislation - 289

Index Public finance and taxation accounting and auditors: Local Accounting, Auditing and Financial Reporting, (1980) 4448; Auditor Revenue, (1981) 77; Grant Audit Financing, (1981) 78; Auditor Access to Records, (1981) 79-80; Duties of Agencies with Regard to Audit Reports, (1981) 82-87 bonds and notes: (1982) 126-29; Agricultural Land Preservation Act (Statement), (1991) 90-92 budget: Capital Budgeting and Planning, (1982) 126-29 fiscal crises: Prevention and Control of Local Government Financial Emergencies, (1982) 9397; Financially Distressed Municipality Act (Statement), (1988) 193 infrastructure bank: Infrastructure Bank, (1984) 34-47 inspector general: Inspector General, (1983) 16977 investments: Public Deposits and Investment of Idle Funds, (1980) 15-19; Linked Deposit, (1986) 55-59; Agricultural Linked Deposit Act (Statement), (1988) 192; Home Ownership Made Easy Act, (1991) 48-52; Collateral Pool for Public Deposits Act, (1992) 127-39 itinerant vendors: Tax Registration of Itinerant Vendors, (1985) 144-46 loans: Local Government Borrowing Supervision and Assistance, (1981) 88-95; (1981) 104-08; (1986) 42-47; Capital Loan Fund, (1986) 4854; (1986) 55-59, 91-95; Agricultural Linked Deposit Act (Statement), (1988) 192; Refund Anticipation Loan Act, (1994) 90-95; Export Trade Revolving Loan Fund Act, (1994) 9698 public debt: (1982) 93-97 taxation (income): Authorization for a Local Income Tax Supplement to the State Income Tax, (1980) 12-14; Set-Off Debt Collection, (1981) 82-87; Indexation of Income Tax for Inflation, (1982) 98-99; Economic Revitalization Tax Credit, (1987) 48-58 taxation (insurance): Fire Insurance Policy Proceeds Lien Act, (1983) 247-49 taxation (motor vehicles): Weight-Distance Tax, (1987) 79-91 taxation (property): (1980) 12-14; Delinquent Real Property Tax Notification Act, (1988) 38-40; Intercity High Speed Passenger Rail Scenes Act (Statement), (1988) 195 see also: business and commerce; courts; transportation

290 - The Council of State Governments

Public guardian, see courts Public utilities and public works: Retail Transmission of Electricity, (1997) 40-6 cable television: Cable Subscriber Privacy Protection Act, (1990) 134-38 construction: Utility Construction Review Act, (1991) 96-97 consumers: Citizens Utility Board, (1984) 161-71; Utility Holding Company Regulation Act (Statement), (1988) 62 operations: (1981) 56-62; Utility Holding Company Regulation Act (Statement), (1988) 62; Limited Immunity for Persons Responding to Oil Spills, (1990) 55-62 water treatment: Water Supply Management, (1983) 6-15; Sewage Sludge Resource Recovery, (1984) 3-10; Public Sewerage Privatization, (1987) 101-07 see also: communications; conservation and the environment - water pollution; nuclear energy Purchasing, see state and local government Radiation, see nuclear energy; state and local government - emergency management Railroads, see transportation Rape, see crime and criminals - sexual assault Real estate, see housing, land and property Receiverships, see banks and financial institutions - liquidation Records management and data collection: Confidentiality of Genetic Tests, (1999) 2935; Genetic Information Privacy, (1999) 10711; academic: Preservation of Academic Records, (1985) 96-97; Missing Children Record Flagging Act, (1988) 222-24; College and University Security Information Act, (1990) 128-31 public records: (1981) 14-15, 39-40, 79-80; Vulnerable Adults Abuse and Exploitation Registry (Statement), (1991) 131; Criminal History Record Check for Transfer of Firearms, (1991) 132-35; Public Records Storage on Optical Disk, (1993) 128-32; Filing Liens, (1997) 51-62 vital statistics: Fraudulent Use of Birth Certificates, (1981) 39-40; Missing Children Record Flagging Act, (1988) 222-24; State Vital Statistics Act (Statement of Availability), (1995) 143 see also: domestic relations - adoption Recreation, see culture, the arts and recreation Recycling, see conservation and the environ-

Index ment - refuse disposal Refuse disposal, see conservation and the environment Religion: Student Religious Liberty, (1999) 26265. 0; Relocation assistance, see housing, land and property Reorganization, governmental, see state and local government Ridesharing, see state and local government employees Right to die, see health care Roads, see growth management; transportation Sales practices, see consumer protection Securities, see banks and financial institutions; public finance and taxation Senior citizens, see aged Sewage disposal, see public utilities and public works - water treatment Sexual assault, see crime and criminals Shoplifting, see crime and criminals Smoking laws, see health care Snowmobiles, see transportation Solar energy, see energy Sovereign immunity, see state and local government Special education, see education Spouse abuse, see crime and criminals State bill payments, see state and local government - administration of agencies State funding, see public finance and taxation investments State and local government, Federal Mandates for State Action (Note), (1997); Regulatory Reform Comparative Risk Assessment and Cost/Benefit Analysis, (1997) 63-65 administration of agencies: (1986) 65-68; Prompt Payment, (1986) 102-08; Intimidating Legislative Witnesses, (1999) 146-147 contracts: State Civil Rights Act, (1992) 93-95 emergency management: Appendix - Example State Disaster Act of 1972, (1981) 67-75; Radiation Accident Response Act, (1983) 2026; State Flood Hazard Area Regulation Act, (1988) 1-21; Government Mutual Aid Agreements, (1994) 65-67; Disaster Services Volunteer Leave Act, (1994) 68-69; Interstate Emergency Management Assistance Compact, (1998) 21-26 employee pensions: Municipal Pension Funding and Recovery (Statement), (1986) 101; De-

fined Contribution Plans, (1999) 41-43; employees: Nonpermanent Employees, (1980) 5659; Protection of Public Employees, (1982) 155-57; Ridesharing Incentives, (1984) 12734; (1985) 147-49; Direct Deposit, (1987) 18183; State Employee Leave Transfer Program Act, (1991) 19-22; State Civil Rights Act, (1992) 93-95; Public Sector Labor Management Cooperation Act, (1994) 102-04 firefighters: (1981) 67-75 information systems: On-Line Legislative Information System Act, (1995) 148-49 local government: (1980) 44-48; Summary from States and Distressed Communities Study, (1985) 149-51; State Flood Hazard Area Regulation Act, (1988) 1-21; Financially Distressed Municipality Act (Statement), (1988) 193; Local Government Transfer of Development Rights Act, (1991) 85-89; Local Government Mandate Relief Legislation (Note), (1994) 176-78; Local Government Efficiency and Cooperation Act, (1996) 161-70; Use of E-mail, (1998), Local Government Service Delivery Systems, (1999) 199-206; pay equity: Pay Equity for State Employees, (1985) 147-49 pensions: Consolidated State-Administered Pension System, (1980) 20-37; Public Pension Review, (1980) 38-43; Contributions to Employee Social Security (1980) 60-62; Direct Deposit, (1987) 181-83 police: 911 Emergency Number, (1981) 67-75; Hate Crime Reporting Act, (1990) 132-33; Criminal History Record Check for Transfer of Firearms, (1991) 132-35 productivity: Incentive Pay for State Employees, (1982) 158-60; Forms Management Center, (1982) 37-38; Reduced Worktime Program, (1982) 161-63; (1982) 164-65 public relations: purchasing: Model Procurement Code for State and Local Government (Statement), (1980) 271-72; (1986) 102-08; State Fleet Alternative Fuels Act, (1992) 87-89; Targeted Group Small Business Procurement Program, (1993) 98-107 risk management: State Risk Management, (1987) 92-100 urban: Urban Neighborhood Redevelopment, (1987) 42-47 see also: intergovernmental relations; records

Suggested State Legislation - 291

Index management and data collection State-federal relations, see intergovernmental relations Statistics, see records management and data collection Takeover legislation, see business and commerce - corporate acquisitions Taxation, see public finance and taxation Telephones, see communications Television, see communications Timesharing agreements, see housing, land and property - real estate transactions Tort liability and negligence, see courts Tourism, see culture, the arts and recreation Toxic substances, see hazardous materials and waste Trade regulation, see business and commerce; consumer protection Traffic laws, see transportation Transportation: State Transportation Infrastructure Banks (Note), (1999) 260-61; airports: Small Airport Zoning Regulation and Restriction, (1985) 28-30; State Aviation Development Act (Statement), (1988) 194 boats and boating: (1986) 131-33; Uniform Boat Titling, (1987) 108-14; Security Interest in Boats Act, (1993) 138-42 licenses and licensing: All Terrain Vehicle Registration, (1987) 115-26; Motorcycle Rider Education Act, (1988) 196-99; License Plate Impoundment for Repeat DWI Violations, (1989) 42-45 motor vehicles: All-Terrain Vehicle Registration, (1987) 115-26; Motorcycle Rider Education Act, (1988) 196-99; License Plate Impoundment for Repeat DWI Violations, (1989) 4245; All-Terrain Vehicles (Statement), (1989) 101-02; Automobile Theft and Fraud Legislation (Note), (1991) 108-14; Motor Vehicle Theft Prevention Act, (1992) 149-52; Repurchased Automobile Act, (1993) 108; Motor Vehicle Liability Insurance Enforcement Act, (1994) 169-71; Drivers License Revocation and Ignition Interlock Devices, (1997) 66-71; Motor Vehicles - Weight Limits - Review of Bills Establishing Exceptions, (1997) 72-4; Airbag Safety and Anti-Theft, (1998) 61-66 railroads: Abandoned Railway Reopening Trust Agreements, (1982) 12; Intercity High Speed Passenger Rail Service Act (Statement), (1988) 195; Railroad Trespassing Act, (1996) 174-75

292 - The Council of State Governments

ridesharing: (1981) 142-46; Act to Remove Legal Impediments to Ridesharing Arrangements, (1981) 147-50; (1984) 127-34 taxation: Weight-Distance Tax, (1987) 79-91; Intercity High Speed Passenger Rail Service Act (Statement), (1988) 195 traffic laws: Revisions in the Uniform Vehicle Code (Statement), (1981) 157-60; Standards for Speed-Measuring Instruments, (1982) 15051; Highway and Street Intersection Safety Act, (1996) 100-02 see also: insurance - motor vehicles Unemployment insurance, see labor Unfair trade practices, see business and commerce Unions, see labor Universities, see education Urban development, see growth management Veterans, see health care - treatment VictimsÂ&#x2019; rights, see criminal justice and correction Vital statistics, see records management and data collection Volunteer services: Act to Remove Barriers to Coordinating Human Service Transportation, (1981) 142-46; Community Resource, (1982) 166-68; Volunteer Service Credit Act, (1989) 129-34; Home Care Volunteer Program for Maternal and Child Health, (1992) 28-29; State Volunteer Service Act (Statement), (1992) 106-07; Adopt-A-Park Program Act, (1993) 74-75; Government Mutual Aid Agreements, (1994) 65-67; Disaster Services Volunteer Leave Act, (1994) 68-69; Food Donation Liability Legislation (Note), (1994) 7074; Adopt-A-River Program Act, (1995) 6162 Voting, see elections Waste disposal, see conservation and the environment Water pollution, see conservation and the environment Water treatment, see public utilities and public works Weapons, see guns, firearms and other weapons Welfare, see public assistance Wetlands, see conservation and the environment Wills, see domestic relations - marital property Work release, see criminal justice and correction WorkersÂ&#x2019; compensation, see labor Zoning, see growth management

Suggested State Legislation - i

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