 to order minutes at 10.04, welcome everybody, first order business is to review minutes of September 5th and October 3rd, are there any objections in combining those two together? I'll hold approval of September 5th and October 3rd. Any comments, corrections, if not, those in favor of moving the minutes of October 3rd and September 5th, say hi. Hi. As opposed to the minutes, approve the minutes of the meeting. The rule on the agenda is 19 P55. It's the service of the city hall and lactation and non-saltation services. Take a seat while you're doing that and we will introduce ourselves. Senator Ginny Lyons representing Chittenden County. Senator Mark McDonald representing Orange County. Representative Robin Chestnut-Tanjewer from Midtown Springs. That's the unasked answer that comes to mind. Senator Boone-Miner says it's time. State Senator Joel Belling from Illinois County. Senator Chris Braver representing the Addison Senate District. Thank you. Would you like to give us a brief overview of the rule? My name is Linda Narrow-Macklin. I'm a staff attorney in the Medicaid policy at Warwick. I ask that everyone speak loudly because whatever is going on appears. Okay. Thank you. Do one of these, okay? My name is Linda Narrow-Macklin. I work with Ashley Berliner who would normally be here today on H-Car rules, but she is not able to be here today. I am a staff attorney in Medicaid policy that actually oversees the Medicaid policy unit at AHS. We have seven rules before you today. One of them is a new rule and that's the first one. They can home lactation consultant services. I just thought that for efficiency that I would mention the public engagement process for all the rules because it was the same. Okay. We worked with subject matter experts within the agency prior to filing the rules with solicited comments from departments, the MEAD and Vermont Resolute Society and considered those an initially drafting a proposed rule. Of course, when through the rulemaking process, we had a public hearing on September 3rd. There were no witnesses. And then we received comments on just two of the rules. The first one that we're discussing today, in-home lactation consultation services and also the medically complex nursing services rules. So let me move them to in-home lactation consultation services. This is a new rule. It's an existing service. The rule is catching up with our practice. It outlines existing policy for in-home lactation consultation. I want to emphasize that this is in-home consultation. Services that are provided in a hospital or office setting are not under this rule and are billed through the facility and not subject to the requirements of this rule. The in-home lactation providers, the rule specifies, have to be licensed in Vermont. Generally, it's an RN or a midwife and have to hold an international board-certified lactation consultant certificate. So these are medically necessary services provided in the home by someone with the IBCLC. And I'm happy to answer any questions you have. Can you clarify the difference between a CLC and an IAP CLC? I ask the difference between the two providers, a CLC and an IAP CLC. I'm going to use my excuse up front, but I'm pinching me. So let's just get that on the table so I don't have to keep saying it, so when I'm stumbling. But I know an IBCLC has to be a licensed healthcare provider. And the other certification does not. And that's why we chose to have Medicaid law requires that we have a licensed provider. And that's why we chose to have this certificate because of that. And it's also, the way it was described to me is that it's just the qualifications. It's just a much more robust qualification process. So the other certification can be used in an inpatient or office setting, but in the home it's the RN or midwife who has gotten the certificate. So the one required for a home, in-home service is an otherwise licensed medical provider? Yes. But the CLC can be an otherwise licensed provider or can be a late person for lack of a term? That's my understanding. It was also a consideration of sort of the merits of the certificate. And that this was, I guess, had a much more robust requirements. That's the explanation from our subject matter expert on it. Thank you. Is that helpful? Yes. Thank you. Are there any questions? I don't have a question. I did recognize this rule as meeting session towards requirements. And I have the sheet to give to Sharkin. And I'll do that for each one of the rules we look at. Are there any further questions, comments? If not, entertain a motion. I'll move approval of 19P55. If there are no further discussion and all those in favor, we'll say aye. Aye. Aye. Opposed to name and approved rule 19P55. The next one is 19P56 with audiology services. Yes. Audiology services. This is an amendment to an existing rule. And it's basically was required because we had a limit on the number of batteries people could get per month. The rule limited a person to six batteries per month. And we did rulemaking to remove that limitation. While we were in the rule, we also moved prior authorization requirements. Or we changed the rule to move prior authorization requirements to the Medicaid fee schedule, which we're doing with a lot of rules. And we'll see that as it gives the state flexibility to be able to amend prior authorization requirements. So that's essentially that rule change. I believe this meets statutory requirements. I'm curious about what prompted the change in number of batteries. Was that required or was that a problem that discovered in House? I think the latter is my understanding. It's surprising because we recently touched this rule. I really can't give you the history of it. But it is better for beneficiaries. Right. Expanding services. Are there any further comments, questions? If not, then motion to approve 19P56. So moved. Thank you. All those in favor say aye. Aye. Opposed to name this rate. That's right. Next rule of 19P57, dental services for beneficiaries age 21 and older. Yes. So this is also a rule amendment. And it was required by statute act 72 that increased the maximum dollar amount for dental services for this population from $510 to $1000 per calendar year. And this rule makes that revision. Let me see if there's anything else. That is, that's the scope of changes for this rule. I think there actually, excuse me, there's something at 4202.5A periodic prophylaxis. There was some loosening to allow an ever medically necessary and not to require prior authorization. That was also a change. This also means mandatory requirements. I have a question. This has a financial impact. Yes. And I'm wondering is that, will that require additional, or is that Medicaid money? Federal money? Will that require additional state? It does require additional state dollars. So it's, oh please. It was in the, we did this in the appropriations bill for 2020 this year. So it's covered for this year. It's covered. Thank you. I can share a little more, but is that sufficient? That's okay. It's assuming a January 1 start date on this. The program cost to diva and state dollars is estimated between four and $600,000 in year one of implementation. Annualized cost should be between $800,000 to $1,320,000. Excuse me for scanning this. The impact is estimated in the Joint Fiscal Office fiscal note from March 2019 that was presented to the legislature. And that is, it says that diva received an additional appropriation of $1,083,893, effective general. And is there any estimate of the savings from increased preventive care? I think the economic, the economic savings. Yeah, I think the answer is nothing solid. Like that we, right, preventive care should mean, it should mean saving acute dollars later, but we don't have an estimate. So this was a bill that originated in the Senate Health and Welfare and then did the appropriations. And Linda's representative. Myers-Walker. One of the things that we discussed was the advantage to folks who have their teeth fixed and getting jobs. And so then helping them to move off public assistance. So we saw this as an opportunity. In addition to which, in appropriations we discussed the fact that there didn't seem to be that many people overall taking advantage of the plan when it was the $500. Because when you look about going to a dentist, you understand that. So part of the reason that we felt that we could increase it was that perhaps it would get more people involved in the program. Because again, as Senator Lyons has said, people who have their teeth fixed have a better opportunity for employment. Thank you. Yes. Any further discussion or questions on this rule? If not, entertain a motion. I approve 19P57. All those in favor say aye. Aye. Those opposed say nay. We approve 19P57. 19P58. Dental services beneficiaries under age 21 and pregnant and postpartum women. This is also an amendment to an existing rule. It's a tweak, but an important one. I think since we were touching the other rule we came in and touched this one. So dental services works differently for under 21s because there's a requirement under federal law that would provide all medically necessary services to under 21s. The EPSDT benefit. And so we revised this rule to make more clear at 4.203.5 that particular services that are named there are provided if medically necessary. It's just meant to make it more clear. And the prior, let's see, is that right? And there's not, and prior authorization isn't required. So it's meant to, I think, increase access and align with federal law. Based on committee review this week's statutory. Thank you. Any questions or comments on this rule? Senator Bennett. Thank you for Senator Lyons. Can you tell me why there would be criteria necessary for pregnant and postpartum women? Part of the program. So I don't, this may be quite, this isn't going to be in the weeks, but I can tell you that the law requires that the services provided to under 21s, dental services, that pregnant and postpartum women get the same services. So there's a carve out and they travel along with the under 21 who have broader dental coverage than over 21s. It's, I'm sure that that's meant to expand access to pregnant and postpartum women, recognizing that dental care is important to babies like us, yeah. It's not. I'm ignorant in this subject. So I don't, I'm asking, I'm blind ignorant so I just want to put it, understand. It's a great question. Yeah. Any further questions on this rule? If not. I'll move approval P19P58. All those in favor, approving 19P58, please say aye. Aye. All those they may approve 19P58. Next one, 19P59, eyewear and vision care services. Yes. This is a, also an amendment to an existing rule, a very small change and this would be an example of where we moved to see a 4.214.4. Prior authorization requirements from rule into Medicaid fee schedule and again that allows greater flexibility when we have to change prior authorization requirements, we don't have to do rulemaking. There's also another change which is intended to ensure that this rule aligns with federal law for EPSBT coverage for children under 21 to make clear at C above that, point three, that if we specify how many glasses, a pair of glasses under 21s can get per year, but the reality is the federal law requires us to provide whatever is medically necessary. So this, this language is intended to make that clear. Generally it's this amount but if the other circumstances that we do cover more. Any questions, comments on this rule? Any motions to approve P59? Why not 19? I approve. Move that we approve 19P59. All those in favor say aye. Aye. Opposed say nay. You approved 19P59. 19P60, medically complex nursing services. Yes. So, yes. This rule was previously called high tech nursing, I think. And that's what the program is called. This is an amendment to an existing rule. The intent is not, is to make the rule align with actual practice, not to change services we're already providing. We changed the title from high tech nursing, I mean I have that full title right, to medically complex nursing. It's not a change in services, it's just meant to be a more meaningful title because the reality was that to get these services you didn't have to be technology dependent. You had to have a medically complex needs. So we thought that would be more transparent. The rule is written now is, allows these nursing services, these are to, well, these nursing services to be delivered to a home health agency. This rule would revise that requirement and permit these services be provided outside of a home agency. So now an RN or LPN can directly enroll with Medicaid rather than working through a home health agency. And this is, and that's current practice and why that evolved is because of the shortage of nurses and trying to expand access for these families. Also on this one I have a little fly anointment, which is we would like to, upon, after re-reviewing public comments, particularly from Vermont Legal Aid, we looked back at the rule and would like to add text to add clarity to make sure, because as it's written now there's concern that it looks like we're taking away the services. And so, and specifically there's text that says we provide case management services. We have, which we removed in the proposed rule, but we'd like to put back and we just met with DLA before. And I think, I don't know, I think Bob's going to testify. And so in any case we'd like to replace that language with language that we think more accurately reflects what we actually cover, which is it's nursing care plan management oversight as appropriate and permitted within the scope of practice. This is not intended as any change in services. Section with that. Oh wait, sorry. It's four point, and I have a four point two, three, two point two. We propose, may I have permission to pass the pass? Yes, please. Okay. Thank you. Good to pass them to Senator Brown. Oh, okay. Would you pass those around, please? This or any other? Are we going to hear from DLA? Yes. I'm curious. This seems to solve one problem, but not the other. So we have legal aid on that. You would still like to testify? Yes. Before this witness steps down, though, can we ask this witness why the second issue with legal aid is not addressed? This is a four point two, three, two point five B. They were asking for a specific phrase to be put back in the past. It appears to have been struck from the document you just came out. Do you know why your office chose not to include that? Okay. Four point two, three, two, five B? Yes. Okay. That's a carry forward. Yep. So I'm reading from the annotated. The current rule as written does not permit says unused service units may not be carried forward. And we are, so we're not changing the meaning of that text where payment for service, the text we propose is payments for services will not exceed the units authorized. The only difference in between that and current text is we change shall to will. The second sentence now reads, I'm sorry, it's hard to read. Unused service units will not be carried forward or used for other services. And it had said, so hard to read annotated and follow, it had said unused units may not be carried forward. But the same meaning, it's not meant to be a changing meaning. I understand that. Okay. I'm sorry. But legal aid was asking for a phrase to be inserted. Okay. Yes. The benefit not be, any service units will not be carried forward past the benefit year. Did you look at that and make a conscious decision not to include that? Yes, we did. Can you tell me why? Yes. These services are under our Medicaid state plan. And the state plan does not give us authority to carry forward services. It requires that we do prior authorization, which in this program we do through an assessment tool, which basically functions as prior authorization. The assessment tool determines nursing services required within a weekly period. And there's, so it's what somebody needs within a week. If someone has a change in need, they can ask for more services based on change in medical necessity. But there isn't a concept and there's no authority and we would not receive federal matching money for actually allowing a family to carry forward services. We understand that there, and I can't speak in much specifics about this, but there are families who are on the developmental disability waiver who get these services and do some sort of carry forward. But that flexibility is within a waiver, which is outside of our state plan. It's the waiver, by definition, our services that aren't under our state plan. We have permission from the feds, so to speak, to allow certain things in the waiver that we can't allow under our state plan. So there may be anecdotes of families where, I mention that to the extent that anyone ever says, but this family gets it. So, our staff has told me that they're only getting that under a waiver authority that they get because they're new to the waiver. So as you read this, it does say, when you look at the one that you handed out, not exceed the units authorized. So when you say units, are you talking specifically about dollars? I think, I don't know if it's hours or minutes, Susan? Hours, yes. Hours. Hours. So is the payment on a fee-for-service basis, or are some of these folks moving to a per-member-per-month fee-for-service? Is that right? So when it moves to a per-member-per-month, right? Ultimately, all of this will. So the concern I would have is if it does that, then say, you know, carry forward has little or no meaning. Susan Covert, Medicaid Policy Emergency Department. Just really quickly, this program is a fee-for-service program. Any changes in payment models or methodologies? I don't believe would apply to the allocation of hours to these individuals who are receiving direct nursing care in the community. We can follow up a hearing, but per-member-per-month, this is a separate. Nursing services provided to individuals in their home. Okay, so that would be interesting when we get there. It's fee-for-service. I'm just trying to understand this. So if somebody, if there's an allocation of four hours a week, picking a number randomly, and two hours are utilized, then the remaining two hours just kind of disappear if anything can't be used. Correct. The medical necessity determination, as I said, is based on a medical need of that individual in their home for a weekly allotment. I'll wait and listen. I'd like to listen to you. Okay. Formulate my question. Yes. Or better. Please tell me where I should. Do you want me to stay here? No, she would take a seat. Yes. Please come up and take a seat. Thank you. For the record, my name is Rachel Sealig. I'm a staff attorney in the disability law project at Vermont Legally and previously spent about two years in our first, and with the state's first medical legal partnership. We are here to comment on the medically complex nursing services role, which you've heard about a little bit already together already. And I want to start by kind of backing up to the big picture about what this program is. This serves a very small number of Vermonters, but Vermonters with incredibly high need. Some are allocated up to 112 hours of nursing care in their homes every single week. And the way that that happens is they get assessed and then they get a letter. And that's generally a letter that tells them how many hours they get per week for the next year. Unfortunately, most of these families are only getting on average about 50% of those hours filled. And that puts an incredible strain on the children, on their families, and on our whole medical system when they get sick because they're not getting enough nursing care. We've been meeting with the state for almost a year trying to work on this issue. And there has been some forward progress on a couple pieces that will help about three of the pediatric families across the state. We're very much hoping that the rule change would also be a step forward in solving some of the problems that have prevented families from getting all the hours that they are allocated. And we're very glad and agree with the change in the case management language that Linda mentioned earlier. But we do think it's very important to really look at this carry forward issue carefully because right now families, as you said, don't get all the hours and then those hours go away. And so unless they then go back through the assessment process to get allocated more hours per week, they can't then use those when the need increases, either because the child has gotten sick or because they've been in the hospital and are coming home or because a caregiver has gotten sick or has left. And so now they need to kind of fill in because somebody who's been unpaid is no longer available. So there are a lot of reasons why we think this would help the program function better for families. And so that failure to change and create that flexibility we think will continue to keep this program that has been broken for a long time, broken. And I'm happy to answer any questions that you have about our comments. If I could just add one thing. Can you introduce yourself? Yes. I'm Barbara Prine. I'm also a staff attorney at the Disability Law Project at Vermont Legal Aid. I think part of, like you think of a very complex kid who usually has been in the hospital. And now because we have better capacity, these kids are getting served at home. And so they're getting intubated. They're getting tube feedings. They're getting suctioning. They're getting airway management. They're doing things that are nursing level of care all day long. And when the nurses aren't there, the parents are doing it, right? And when there isn't enough nursing services, the parents miss work and they miss sleep. And if they don't have a nurse one week and they miss work and they miss sleep, and the next week there could be a nurse there, they can't use the extra hours. They can't make up the work. They can't make up the sleep. And we heard what the state said about why they can't do it. And I'm not saying that I think they're not telling the truth, but there isn't any reason why the allocation couldn't be an annual allocation rather than a weekly allocation or a quarterly allocation or a monthly allocation so that the families could have flexibility and this is a very broken system and this change could make it better. We think it'll only make it this much better, but for those families this much better is better. I don't know whether this is for you or for the administration, but what kind of authorization or administration goes on to determine the use of hours and so if you've got a kid in this situation where the hours are not used and then they're looking to use them in the following week, what kind of process do the parents have to go through? So currently there aren't actually enough nurses working in the program for that to be a realistic option, unfortunately. Parents are allowed to ask for a reassessment at any time. These are parents who are incredibly overwhelmed with all the doctors visits, all the hospital visits and so to be able to take the time to call the Children with Special Health Needs Social Worker and find somebody to come in and do that reassessment is just realistically not feasible for these families. Is there a drawback to banking these hours in terms of, my understanding is that services are narrowly, the divided services are narrowly defined. Is there a mission creep concern? What is the rationale for not banking the hours? Maybe this isn't a question for you. I don't understand it. I'm not sure there's a rationale for not banking the hours, but the state might feel that way. They've approved people for many hours and the state has the money for this many hours, right? They've approved it. They've said these are medically necessary, as Linda Macklemore said, the state is federally required to provide all medically necessary care for children and this is, this kind of care is medically necessary care. Like this is, these are, like you meet the families and they're very sick children. So extrapolating from that, is the not being able to bank the hours means that medically necessary services are not being provided? Yes. Because you said earlier that, that some patients are receiving half of the allocated services. Yeah. Correct. So some patients are, on average it's about half. Some are receiving more, some are receiving none and they can't bank those hours for when they do finally get a nurse assigned to their family and they are not therefore receiving medically necessary care and the parents are stepping in to provide the care. Part of the problem is nurses are getting paid like 15 to 30% less than nurses are at the hospital. So the hospital has a 9% vacancy rate. This program has a 50% vacancy rate. So we have a nursing shortage. We have a nursing shortage. We have a nursing shortage of 9% at the hospital. We have a nursing shortage of 50% in pediatric home care. Right. So one of the phrases that's there in B on the conditions for coverage is, or other services, is that problematic? I'm assuming that they don't want to go outside. The administration doesn't want to go outside sort of what is medically necessary. So that covers, does that phrase cover that? I'm referring to 4.232.5B and that says payment for services will not exceed the units or other use for other services. Yes. Okay. So now when you say will not exceed the units, does that imply that those units are available for the whole year? No. They're not available for the whole year. They're available. Medical necessity is determined on a weekly basis. And that determination is made on a weekly basis for these kids? No. There's approval for. So I made Susan's assistant on this. There's an assessment tool that is designed to determine medical necessity on a weekly basis. And then can you tell me how, can you explain to me how services are provided in what kind of time? All right. Susan Cobra Medical Policy. They are under the direction of a physician. A physician would submit an order for services. The prior authorization is through an assessment tool that's conducted by state staff talking with the provider, the family, and others. They determine the medically necessary amount of services allotted per week for that individual. If there are any changes in the medical need of the beneficiary, the state can reassess or provide additional hours as needed. We would be concerned about holding back hours one week for another week. And that we want, we will authorize them as medically needed. I see the conflict. I absolutely see the conflict here. I mean, having a single parent, having to perform the nursing duties and missing the job, missing their work. This is a, not how we solve this problem. It's not simple, but I think erring on the side of the care of the kid, taking care of the kids to me is really important within the rules. So the conditions that these services are provided for, are these generally chronic, stable situations or do they fluctuate week to week? They're generally chronic. I'm not sure I would call them stable. I mean, these kids are very medically fragile. And so when their nursing is provided, that's what helps them stay as stable as they can be. But these are kids who need, often they need a ventilator for breathing or a trach for airway. They need a lot of suctioning. They can't eat food themselves, so they have to have it pumped in through a line in their stomach. And so those things don't go away. Those things tend to be things that the kids will need as long as they can stay well. Yeah, sorry. You know, there I think are other services that get prior approved for more than a week at a time. And so I'm not quite sure why. I mean, I know the families don't perceive as being prior approved for a week at a time because they get a letter and it's the letter they get for the year. And I'm not quite sure why they couldn't be prior approved for a month or two months at a time. And, you know, for a family that's, you know, even a school vacation, they might need more hours the school vacation week than they do the school week where there's nursing provided when the kid goes to school for two hours a day. So there are a lot of reasons why being able to use hours flexibly flexibly is good for these kids. I'm just mulling in my own head. I'm smelling that how far does this committee have the right to delve into what should be a committee of jurisdiction and discussion. And I'm... And it's a letter. You wrote the letter. And it's a letter. Yeah. I was asking the same question about policy versus legislative intent. Yeah. You know, so I've been in front of this committee before for years and years and years and years. Sometimes when there's this kind of conflict and legal say it says, I don't know why they can't do it this way. And they say, well, you don't think we could do it this way. I think one, I don't know if they're at their deadline, but a letter explaining why they believe they cannot authorize it for more than a week and having us come back to discuss it might, because maybe they can authorize it for one month or two months. And then you're not forced into the... You guys don't like saying, I understand you don't like saying this doesn't meet the intent. There's a, there's a, you know, you care about our state government. So there's a tendency to not want to do that. But I think we could put the state to its proof about why I can't do it because I think they can. But I don't know as much as they do. They know more about this program actually, you know, obviously than Legal Aid does. Representative Myers. I would like to suggest their, their period doesn't end until 1124. And we have another meeting. We're going to be meeting on 1114. And I would like to suggest the possibility of Legal Aid meeting with the department to thresh this out a little bit better. So maybe it's a little more understandable to us. And hopefully they can come up with some agreements that will make legally happy but also solve the problem that the department is looking at. So that's, I would like to move that we ask Legal Aid to meet with the department and come back to us on the meeting of November the 14th. I'll answer your questions. And perhaps point that out and then the state will tell us why they can't meet this, meet the position that's being suggested. To clarify, so does Legal Aid have a recommendation on a carry forward time period? Is the service year a monthly quarterly review? I mean, we had drafted a proposal for the service year. But I think we can talk with the state about that further. There's a motion on the table to postpone action until 1114. Next scheduled meeting on that question. If not those in favor, postpone it until November the 14th. Say aye. Aye. Aye. Those opposed say nay. We'll see you all in two weeks. Thank you very much. Thank you. Can I come back? Yes. Please join us again. So that the final human services will medicate cost sharing in 1961. This is an amendment to an existing rule. The rule is amended to exempt preventive dental services from co-payments as required by Act 72. That's at 6,100.3C2. We've added that tax. So I had a question. Is our preventive dental services defined in this rule? And the other defined elsewhere? So, let's see. So I have a note and then I'll follow this occasion to clarify where I gave a preventive services. This is for over 21s and not pregnant postpartum women. Preventive services include two cleaning per year periodic oral evaluation application of chloride varnish and tobacco cessation counseling. I cannot tell you where that... Susan, can you tell us where that text comes from? There was some language and statute about what services were to be included. The department did also review and added a couple things like tobacco cessation counseling but it was following an alignment with the statute and the additional appropriations that were considered. When it says the following services are exempt sexual assault related services preventive dental services and services otherwise exempted where are those found? Yes, later it's in the rule. It's on the fee schedule and the dental supplement manual it says these services are outside of the annual adult cap. And I think the notion is that allows some flexibility for example preventively without a rule of change. Any further questions? Comments? Not? Entertain a motion? Approval of 19P61. All those in favor approving 19P61 say aye. Aye. Opposed? Say nay. Approved. 19P61. Thank you very much. The next rule is 19P43 Agency of Natural Resources around Fletland. Please join us. So I just wanted both colleagues now on the committee that I have as chair of a committee of jurisdiction have signed off on both rules D43 and D44. So both rules we legislate them then? But I do want it with me so people don't have to count. Thank you. Good morning. Introduce yourselves. Yes. I am Laura LaPierre and the Weapons Program Manager of the Agency of Natural Resources. And I'm Hannah Smith Associate General Counsel with DC working with the program. The proposed change to the Wetland rules is a very minor language change. The language itself appears in Appendix A. It's the addition of the Beaver Meadows Wetland Complex to the list of designated Class 1 wetlands. The Class 1 designation indicates that the wetland merits the highest level of protection based on an evaluation of its functions and values. This particular wetland is 66 acres in size. It's contained entirely within the Green Mountain National Forest and in response to a petition filed by the Ripton Conservation Commission who provided a petition laying out the reasons for the proposed designation which the Agency then accepted the petition and moved forward with rulemaking. And I'll let Laura talk a little bit more about what the functionality of this wetland. So this wetland which sits up in the Green Mountain National Forest is 66 acres in size Class 1 wetland proposal that's come forward but also not the smallest. It has multiple different wetland community types and it's unique in that it's within two different watersheds. One portion of the wetland flows into the Middlewood Ferry River and the other side into the New Haven River. It has all 10 of the functions and the values which we evaluate. It's significant for all 10 of those functions including things like flood storage, water quality protection, wildlife habitat, fish habitat, etc. It was found by the program that it reaches the level of irreplaceable for Vermont's natural heritage in two of the functions that are significant natural communities that are uncommon. In particular there's Dope North Shrug Bog portions which there are very few of those in the state and also includes Black's Groups Bog Habitat type as well. It's also irreplaceable found irreplaceable for education and research in natural sciences. There's been a lot of studies in this wetland in particular. There's been a lot of winter tracking of mammal tracks and so there's a wealth of information on what animals use this wetland type as well as some of the earlier amphibian and reptile surveys done in the state were up in this area as well. Because the wetland has been managed by the Green Mountain it's quite undisturbed and within intact landscape. So that's unique for wetlands to have that pristine of the state. We have a way of evaluating wetlands with a rapid assessment method and it's received the highest score that any wetland has received. So we felt that this was an irreplaceable wetland that deserves class 1 protection and we also determined that it deserves a 400 foot buffer zone in order for those functions and values to be adequately protected. Buffer zone? What does that mean? So the buffer zone is the area directly adjacent out to 400 feet from the wetland boundary and it's the area where you could forcibly do activities and that could harm the irreplaceable function of the wetland. And so if somebody wishes to do activities within that 400 foot buffer zone they would need to apply for a wetland to come out with the program. Would that mean logging primarily or other? There are some logging but certainly if a third party wanted to put in a ski slope or trails and such they would need to have a permit in order to do that work. Given that this is in the Green Mountain Forest Federal, it's federally protected? It's currently under the Green Mountain National Forest Management Plan and it's part of a special protection area. So it is actually there are federal protections in place as well at the moment. So how does that sugar off when you've got federal and state? I guess my question is would this happen if we left it to the feds would they protect it as class 1? Or if we just put this in place and ensure broader protection? So currently the class 1 protection is consistent with the way they manage the special area. I mean there's no logging that's happening there. If they were to revise their management plan though the class 1 protection would provide state restrictions if they were to revise the management plan and lease the area to a third party who intended to conduct some other activity that's currently prohibited under the air protection. I have another question when everybody's finished with that. Okay. A little crowd go through this area? It's nearby but not directly through the area. I have just a couple of questions. So one, glad to see this happening. And some of the when I was using it closely I talked about some things that made me wonder about the timing. So if I look on the application that's the entire class that we have. Section 20 page 5 says hearing information and it stated 716-2002. Is that just a typo? Or was there a conversation that was suspended from a long period before? It shouldn't say 2008-2002 on there. These are the filing forms? Yes. And on page 5. The discussion? Oh, yeah, that's a typo. That was 2019. Okay. I just was hoping that the program didn't take that long to do. No. That hearing happened this summer. Yeah. And the secretary has the ability to write the motion on him or herself to move a class to wetlands in class 1. You don't need to wait for a petition. Is that correct? That's correct. Are there any such considerations that are aware of? Well, we do have a list of wetlands which we've evaluated so that people could merit more review in order to potentially determine through the agency class 1 potential. Is the agency moving these themselves or are they all in response to a petition from an outside party? Well, we have in the past. We don't have any in the works currently. And then as I want to understand better a question not a nipping question but page 2 is in our so there is a response summary for revisions to a rule just a two-pager and on the second on response 7 page 2 of that section because there are a lot of uses that are allowing class 2 reference and on class 1 including then the colon and then there's no list so I'm just in a way following a little bit on the same maybe let's say 30 center lines what's allowed if it's designating class 1 versus class 2 and within that 400 foot buffer interested whether or not agriculture could become an allowed use. Yes, so the allowed uses apply to all wetlands. There are some specifics for forestry within class 1 wetlands where you would need a forestry plan approved by FPR Forest Parks and Recreation so that's the difference with our allowed uses. The biggest change is really the activities occurring within the wetland itself where you would need to build a case that there's a compelling need for public health or safety in order to receive a permit from the agency to perform an activity within the class 1 wetland. That compelling need for public health and safety is not a requirement within the buffer zone but by having a broader buffer zone which the agency has oversight over we're able to ensure that those irreplaceable functions and values won't be harmed by those activities taking place further out from the wetland. So right before that including colon, it does say in terms of potentially allowed uses repair maintenance of existing structures roadways or utilities on road impact recreation, snowmobiling past trails and maintaining lawns and civil cultural activities are all those so this I'm trying to make sure I understand is that a comprehensive list of what is allowed and is that only for class 2 or class 1 potentially as well. That's not a comprehensive list those are examples and our list is within section 6 of the rule and all of those apply to class 1 and class 2 wetlands. So going all the way back down to agriculture within 400 feet of this wetland, a class 1 wetland could someone in agricultural operations. If they are if the area is all forested like in this condition they would need to apply for a conversion permit so that wouldn't qualify under the allowed use for agriculture. The agricultural allowed use works in conditions where it's a the area had already previously been cleared and the allowed use is to plow and plant and harvest within those areas. So for instance there's another application to take of wetlands in other creek and change them from 2 to 1 and those are adjacent to farmland. So if they're already in farms the move from 2 to 1 won't require those operations to agricultural operations to see them. I don't have any further questions. Thank you Mr. Chair. I have one last question. I know that you you've been before us previously on class 1 and there is the one outstanding class 1 concern I think that some of us on this committee have had was around the black gum swamp in Berman and what has transpired with that. I know you worked very hard on a number of classifications and that was one of them. But I don't know what we can do but we can't do anything about it in this context but I'm just the question that Senator Bray asked were there other class 1s that you're looking at or places you're looking at to classify and that is does that continue to be on the list or is it being forested harvested for trees what's going on with that one? Do you know? Recently harvested before we put forth the proposal and so it's not in a condition where anyone would be logging currently I haven't heard anything about the area being logged recently we did receive a letter from the select board in opposition to the petition and so we withdrew that portion of the proposal when we came forward with those four wetlands a few years ago and it's we've still determined it to be significant and irreplaceable and in function and value however we'd like to work further with the town to understand their objections and work with them rather than go forward with it I guess given proximity to the old power plant that's there doesn't that meet the public health and safety criteria that you were talking about? I just wonder if this is a letter that we or maybe we don't have to send the letter Chris is sitting here but I really think it's it for me that is a very unique wetland and I think it would be helpful to have committees of jurisdiction just evaluate where it is right now I know the planning commissions down there were very interested in having a declared class one but obviously select board is a different kind of a fish as Laura mentioned it's not because it met the qualifications it's not been removed from our list but the agency has not brought it back in a rulemaking proposal based on the opposition from the town so yeah we still qualifies as a class one thank you we have another witnesses Mark Nielsen here one more please are there any other questions for these witnesses thank you very much please join us sorry I'm a little late in class this was scheduled for later you have time to do this permit okay great thank you for allowing me to come and provide some testimony of witness do I need to state I mean just identify yourself Mark Nielsen and I'm here as chair for the Rifted Conservation Commission and I recognize that the primary job of this body is to look at the processes that are followed to make sure you follow the correct processes before a rule is implemented but I'd like to speak today about why we like to see the Beaver Meadows complex reclassified as a class one wetland I'm sure you may have heard some of this before I'm sorry I wasn't here in the other testimony so if there's some repeat here I apologize so first of all thank you and I'm going to read from my written testimony that I did provide thank you for the opportunity to provide testimony in support of the petition to classify the Beaver Meadows wetland complex as a class one wetland with a 400 foot buffer the Rifted Conservation Commission filed this petition on September 14th in 2017 and this was filed with the support of the Rifted sweat board and also we did review this with the Bristol Conservation Commission also protection of Vermont wetlands and headwaters is critical to address the water quality problem that exists in our state as well as providing protection against the changing weather patterns that are resulting in more frequent strong storms the Vermont wetland rule of state is the policy of the state of Vermont to identify and protect significant wetlands and the values and functions which they serve in such a manner that the goal of no net loss of such wetlands and their functions is achieved the state of Vermont ranks the significance of wetlands based on 10 functions and values they provide for the general public and the environment according to these criteria the Beaver Meadows wetland complex is highly significant it does meet all 10 functions and values the Beaver Meadows wetland complex is unique and is irreplaceable and should be afforded the highest level of protection by the state of Vermont as a class one wetland the 66 acre Beaver Meadows wetland complex is located within the towns of Ripton and Bristol which is primarily where it is let's go into Middlebury it's a very small section and it's wholly within the Green Mountain National Forest it's owned and managed by the U.S. Forest Service and the Beaver Meadows complex has previously been identified as an ecological special area by the U.S. Forest Service it's a high elevation wetland complex that drains into both the New Haven and Middlebury Rivers the Middlebury River in particular has high flood risk water activity has provided natural damming to hold back water from storms and snowmelt the deep peating muck and surrounding wetlands allow for the absorption and slow release of water which reduces flooding potential downstream and helps to offset or delay drought conditions because of the unique nature and headwaters position of this wetland contributing to the protection of two watersheds the wetland is considered irreplaceable for this function the Beaver Meadows wetland complex overall is significant for all 10 functions and values as identified under Vermont wetland rules and is considered exemplary or replaceable for three of them exemplary in natural community irreplaceable for flood and water storage and education and research opportunities and there's been a lot of data collected in this area for decades when this process was started the more the research was done the more data was uncovered over time much of it hold handwritten notes that had to be scanned and put in for being able to put into record the wetlands program completed the Vermont rapid assessment method used to evaluate overall wetland quality and condition during a 2016 site visit the Beaver Meadows complex scored 100 out of 100 point total indicating it was in reference condition meaning unscored condition under the Vermont wetland rules a Class 1 wetland is provided 100 foot buffer research conducted for the Beaver Meadows wetland complex has recommended a buffer of anywhere from 400 to 900 feet and the reasons are one to maintain a 75% canopy to maximize the protection of the ecological integrity of the peatland complex and the wildlife habitat it provides to minimize the adverse effects on the quality of what surface water in the wetland and to provide suitable protected habitat for foraging and overwintering by reptiles and amphibians based on these prior research and the prior findings and the prior recommendations we're requesting a 400 foot buffer for this wetland complex in summary the Beaver Meadows wetland complex provides immense ecological value as habitat for wildlife and plants including a number of rare threatened and endangered species the wetland complex also provides important watershed functions including flood water storage and surface and groundwater protection the valley drains in three directions into the Middlebury River and New Haven River watersheds the function and values it provides would be difficult if not impossible to restore due to complexity it encompasses therefore the ripped in conservation commission respectfully request that the legislative committee on administrative rules approve this rule to classify the Beaver Meadows wetland complex as a Class 1 wetland with the 400 foot buffer thank you are there questions for this please just a quick question you're mentioning 400 foot buffer is there discretion in terms of how large the buffer is defined for any class 1 wetland wetlands Class 1 wetland typically has a minimum of 100 foot buffer we're requesting more than that minimum 100 foot buffer following on Senator Gray's question you mentioned up to a 900 foot buffer that was the previous research had stated depending on who submitted the research and what they've done anywhere from a 400 to a 900 foot buffer we're sticking with requesting the 400 foot buffer and did the town of Middlebury have any comment? because it was a very small section that goes into Middlebury and Middlebury did not have a conservation commission at the time we submitted this we did not talk to them we've seen the map of this wetland complex there's only a small section that goes into Middlebury we did meet with the Forest Service prior to this and they gave us the answer that we expected and that is they neither support nor will go against it which you know if they didn't like it they would say they didn't want it Senator Gray I'd like to move the approval of rule 1943 any further questions debate now all those in favor of approving the rule please say aye aye as opposed to a name and you have approved rule 1943 thank you very much last but not least 19P44 Agency of Natural Resources Reducing Tallow Waste and Increasing Resight Thank you for having us for the record my name is Josh Kelly I'm the materials management section chief with the Agency of Natural Resources Department of Environmental Conservation in the Solid Waste Program and I'm Anne Bajoran environmental analyst in the Solid Waste Program with Josh so this is why don't I start with that this is a plan not a rule but it is required to go through the rule making statute requires that that Vermont adopts a solid waste plan every five years and it generally prioritizes the greatest feasible reduction in the amount of waste generated and to reduce the state's reliance on waste disposal to the greatest extent feasible we're calling this plan the 2019 materials management plan and it replaces the 2014 materials management plan it seeks to the 2019 materials management plan seeks to reduce Vermont's waste increased recycling and composting and also strives for safe management of household hazardous waste sort of one of the most toxic parts of a typical Vermont waste stream the plan establishes priorities and actions for A&R the Agency of Natural Resources as well as for municipalities to meet the goals and it ensures consistent services for all Vermonters and consistent information statewide again it's a plan not a rule it's covered under Title 10 BSA section 6604 and it has components including an introduction covering statutory authority an overview of Vermont's waste and then has plan priorities that are almost directly verbatim of what statute requires us to do it covers market market and facilities assessment of various material types like recyclables construction and demolition waste as required by statute covers both the market and facilities that are available for management of those materials and it's primary core of the document is the actions that it requires of both the Agency and our municipalities our solid waste management entities that include solid waste districts alliances of towns and independent towns it sets up performance standards for both A&R and solid waste management A&R conducted an informal feedback process on the previous 2014 plan in 2018 we asked for feedback from our municipalities because we were ramping up to draft a new plan and the 2019 materials management plan was drafted based on that initial feedback we cut the document almost in half it went from previous 60 pages to 30 pages about 30 pages we were trying to make it simpler more focused on the most effective actions and easier for towns to engage with and to be made for consistent services across the state in April 2019 we had a 30 day public comment period on the preliminary 2019 materials management plan and we held an hour and a half presentation and meeting and question answer period for our solid waste districts alliances and independent towns on April 18th that was before the iCar process after iCar we've held a 57 day public comment period for about May 22nd through July 17th two public meetings one in Montpelier one in St. John'sbury and received comments from about 16 stakeholders Senator so in that process did you hear from solid waste districts yes and in terms of performance standards were they in agreement with the performance standards that you have it looks like a 10% decrease in annual material generation and that is only between that 2019 and 2024 but the baseline you're beginning with is 2019 you've already had reduction from 2014 for those first five years so what standards are you how are you measuring that I guess how are you going to determine that who's responsible for that and is that going to become what who's responsible for that is that's a goal that the agency set for the state through this plan and it starts in 2019 because each five year plan so the baseline is going to be our 2018 data of where solid waste has gone what was disposed of what was recycled what was composed of that sort of data how do we know where we were I mean I'm trying to sort out because we started in 2014 we've made significant progress across the state and now we're starting out in 2019 is this Day Novo that's going to be brand new and starts with where waste is at at the beginning of that five year period and so our data we collect data from our transfer stations our landfills our recycling centers they all have to report to us annually some quarterly where their materials are going so but do we know that we're we're recycling and eliminating waste more because it's greater because we have greater waste or it's greater because we're reducing what's coming in as waste it kind of gets to be a silly little question but it is a very important question if you think about the types of materials we're discussing plastics for one but also the hazardous materials so the goal you're referring to the 10% reduction goal is based on generation so if you take the amount of trash we throw away and the amount we recycle and compost you add those together that's all that we've produced of materials we didn't want anymore we didn't want our milk chips anymore that's generation so that goal is trying to get at the hope that we will actually not generate as much waste in general I mean recycling is good but really if you don't produce the waste in the first place that's the best so will the agency be making recommendations about how not to have so much waste I mean will there be a discussion of manufacturer responsibility I think really this plan is that type of recommendation the actions set out in this plan are the place where the agency sets its targets for achieving that 10% it's a start I mean I think we actually had feedback on that point from some of the districts that said how are we going to meet these goals there's not a lot of explanation of that so we acknowledge that the plan alone can't do it all no it's hard to figure out how many consumer products are being purchased and then from that bulk how much of it is being done with in one way or another the best data we have is what's disposed actually the most accurate data we have is on what is getting disposed and that's our best measure of how we're doing our recycling data is a little bit weaker if Walmart fails their cardboard and sends it directly to market we don't have that data for example we don't know that that happens we have a way of estimating that because we have a study that's been done to help us get an estimate but it's always missed Do stewardship programs count as waste generation? Yes there's a short brief section in here on stewardship programs and extended responsibility it's not a area that the previous statute required us to sort of wrestle with but we feel like products stewardship programs are working very well and that data gets trashed as part of the material that is recycled or safely managed in the case of batteries if you recycle your batteries they get recycled we can talk about that Senator Gray re-assurance maybe to Senator DeLondes who's just going to miss this remark Senator DeLondes she's been in one of the more commentative directions I'm sorry so the when we passed 113 the plastics bill established a working group this summer and fall and DC's been an active participant in pushing in the direction you were mentioned for instance extended responsibility and that's why I think in concert with this plan I think there seems like there's a very genuine broadly shared sense of wanting to do more work in the coming session let's hope good work some of your specific proposals like reducing the number of required household editors waste do you anticipate any reduction in participation there are two opportunities it's a great question so with the way Vermont set up with our solid waste districts and our independent towns there's allowance for towns to do really solid waste services by themselves and we have had a struggle with how to set a baseline standard that can apply to somebody as large as a county-wide district versus a small town it's tough to write language that can make it effective for both our previous plan put a high priority on household house waste convenience collection and ramped up to the very fifth year for collection events which is a pretty high bar for a town to meet during that time a contractor went out of business that provided these services fairly affordably and so prices just started to in addition the contractors that provide these services didn't really want to do weekend events they don't want to run their trucks on the weekend they want to go during the week and make sort of trunk and feeder go to a facility and pick up rather than set up an entire event so the costs were growing and people were actually competing Vermont towns and districts were competing for these limited resources of contractors so looking at that and looking at where to sort of go which is we're hopeful for more established facilities that can that can provide actually more convenience than that has these one-day events can provide but for a town that's one town to have two events near town per year seasonally like spring and fall we felt like that convenience standard that everyone can meet and can be effective for their populations many of these independent towns are fairly rural, very small populations that's a pretty good level of service compared to a very large district a county-wide district that may offer a collection even less frequently for each of those towns this one is getting two in that individual town so that's the struggle I feel like we've struck a good balance it's typical that in any district a household hazardous waste pickup in one town is open to all members yes, typically it is we still have in the household hazardous waste collection requirements that if you don't have a permanent facility where you collect more than just once one day in the seasonal period if you don't have that you have to hold two events and you may have to hold more events because you have a large district so that every town has one event within 20 miles each year if that makes sense so if you're the Brattleboro region and your Wyndham Solid Waste District which is roughly the boundaries of Wyndham County you have some very rural towns further from Brattleboro where they offer two events per year they have to offer additional events if they don't have a permanent facility but we also have the requirements so that if somebody does site a permanent facility you don't have to have those rover events the reason being you're going to increase the amount of access you have because permanent facilities are open weekly instead of just one day where you miss that day and you're like shoot I missed it, it's all in the garage still you know that's where we've been going to balance and try and encourage more services but less cost of the event off topic but on point as the recycling guy in my household I'm a little concerned that I am now prevented from bringing black plastic and the tops of bottles to my recycling center is that something that is unique to my recycling center or is this a statewide situation what's going on statewide in 2012 the state put forth the universal recycling law which has the purpose of at least having a minimum level of banned recyclable materials like requiring recycling of certain state-managed materials black plastic is not one of those neither is bottle caps so some places do accept those materials as far as black plastic I'm not familiar with anybody in the state who's really recycling and able to recycle those and nationwide there are a problem for recyclers across the country there's a very limited market for that plastic it can't be turned into something else of a different color it's black it also when it runs on a black conveyor belt they have it looks like the black conveyor belt if they use machines which more and more facilities are using machines they can't see it it looks like conveyor belt but mainly it's the low value of those things there are some in the Williston Murph the Williston material recovery facilities where a lot of recyclables go the other one is the Rutland material recovery facilities if you drink a bottle of water and put the cap back on after you're done it's empty they will take that cap but the caps also tend to pop off and fall through they can be contaminated so the caps cannot go through the they can't be picked up because of the size because of the size exactly we were told they didn't want the caps because the machine couldn't crush them you're in the northeast kingdom right how'd you guess they'll explode they're the only I think district that does not want caps they do their own bailing there and they keep their costs pretty pretty effective by bailing their own materials but yeah I could see that if there's all that air in there and they put it through the baler all the tops can go flying off which happens at these bigger facilities too but they have much more robust equipment I just have to assume that that's all now ending up in the Coventry landfill the bottle caps are all recycled whatever they're not accepting is causing that facility to grow I don't know by how much but obviously some of us in the kingdom are a little bit concerned about whether or not that facility should be growing the watershed of Lincoln and from Agog sitting around on top of it it would just be my personal beef but it seems like there's got to be some way out of that problem well and actually to Senator Bray's comment that the single-use products working group is much broader than just single-use products looking at packaging in a broader sense and the recycling challenges we have including black plastic if it was a white plastic that they happen to offer you that's recyclable and it's statewide if it's not a number one or two it's not banned by state law so there are some places because the markets are so challenged for recyclables where they're disposing of those and they can legally again the state set a baseline of what was required to be recycled and I actually think it was a pretty reasonable baseline at the time and it has done well given where the markets have recently gone looking longer term there's a lot of investment needed in recycling in terms of more domestic capacity and there's some changes happening but it's a constant discussion Senator Bray a couple questions one was in your assembly document which was very new to me it says language was removed that required for these prioritized businesses that are not recycling is that just because everyone knows there is such a law already or why did we throttle back on that outreach that was just to make the language more clear it was to let the solid waste management districts know that they could they needed to work with all businesses first to find out whether they're recycling and then they target those companies that are recycling first the way we had it worded it made it kind of confusing it made it sound like they had to target businesses that weren't recycling but how would they know that they weren't recycling if they hadn't done the outreach first we're constantly in a situation where the solid waste districts and towns are not required by state law to police the state's laws they are required to do outreach and encourage recycling but they say to us well we don't know which business is doing the right thing so we just took that out and instead prioritized wherever you haven't been to just to make it more straightforward for them I'm going ahead into plan itself page 13 under biosolids, sludge septic residuals in the final paragraph on that page we talked about sludge and demonstration of meeting standards for contaminates metals and polychlorinated biphenyls established by the rules can we not have any rules that are applicable to sludge related to chemicals other than polychlorinated biphenyls PCBs I mean for instance PFOA so we're struggling with ground water standard, surface water standard drinking water standards related to sludge it's an excellent question I just talked to Aimen Tuig in the residuals program before coming here I said Aimen we're bringing the MMP forward and there's requirements in there he helped me write this section specifically so he's going to be much more familiar with what's in their rules regarding residuals and the standards for if there's standards in there for PFOA the solid waste rules are being, are entrapped which I think does include residuals in there as well so that's the way we can address that I was just comparing that to the 10 vs 8 6604 scene where it goes into that and it talks about running pilots for instance and I don't know if although those are allowed on page 14 pilots can be authorized on a case by case basis I don't know if the state is actively involved in piloting alternate solutions for members of the committee like one of the challenges is that PFOA for instance is broadly distributed in the environment then we gather it all together and concentrate it at a landfill and then we leachate and further concentrate it so there's one process that's perversely concentrating stuff and wastewater treatment facilities with sludge seems like it's potentially the same kind of unintended consequence of concentrating something we're trying to avoid I don't know this talks about doing it I don't know if the department is actively working on trying to address that that vector here's what I know of the PFOA work and sort of pilots to date the landfill in Coventry there's a contractor that our solid waste program has hired to look at the leachate and also there's discussion of pre-treatment before it goes to the wastewater treatment facility my thinking is that the solid waste rules themselves which we're working on as well to eventually come to this committee are the place where that can be further addressed in addition to residual sections for wastewater treatment facilities and I think your permit for Coventry required that's my understanding an investigation of handling thank you I have one quick question the first one is looking at after Jamison's letter the same section that Senator Bragg commented on language was added to allow to allow SWMEs to conduct business outreach either by trauma-oriented persons requiring it all in person but the economic impact statement on page 2 says 2019 plan proposes to require SWMEs to conduct business outreach in person rather than by email or phone allowing this may increase staff costs which is your question it is by phone and in person is allowed so this is incorrect the economic impact study I should have fixed that it was holding from the iCar version when we had that in there and we got feedback on it they wanted to be able to do it by phone that sounds good similarly there is a mention of the economic impact survey of one survey being required we've struck an entire survey requirement mainly due to feedback that a statewide survey will be much more effective and we've been talking with them about this for five years it's time that we just put it on the stage my other question I would hold that it's more of a long conversation about organic waste food scraps digesters closing Randolph etc sure it's not a question Mr. Chair I would move that we approve rule 19-P-40 any other questions or all those in favor or is it by saying aye opposed to say nay and we have approved 19-P-44 thank you very much the last item I wanted to ask Betsy to give us a very short update on rabies and health officers and how they are the system that deals with confining dogs and doing rabies stuff Senator Lance and I have a bill that would go to the health care committee to direct the Department of Health to write rules on how they conduct their business and the alternative would be that this committee would ask the health department to do that and our council has done a research does this not have anything to do with swine on the land so what it has to do with dog bites on the land on the land the wild the newly feral pigs of Orange County oh it's town of Orange Senator Bain would be an expert on that was that an expert on that particular farmer it's a part of the Caledonia of Orange so you can see this was referenced in the last agenda item from your minutes from the last meeting at the last meeting Senator McDonnell requested that Alcar review whether Alcar should request the Department of Health to initiate rulemaking regarding its guidelines for local health officers Alcar has the authority to require an agency to initiate rulemaking it's set forth in the administrative procedure act in 3VSA 831C that subsection provides that an agency shall initiate rulemaking to adopt as a rule an existing practice or procedure when requested by Alcar so in that permission a practice is a substantive or procedural requirement of an agency that affects people outside of the agency so a practice is something that requires someone outside the agency to do something or a procedure is a practice that's been adopted in writing so the question is whether the Department of Health's guidelines for its local health officers really do constitute a practice or procedure they're in writing so they would potentially be a procedure but as I understand it from working with my colleague Katie McLinn who has been in discussions with Senator McDonnell's commission Department of Health it's my understanding that the Department of Health does not consider its handbook that it puts out to be a procedure because it doesn't as I understand the Department of Health's position is that this handbook is not a requirement upon local health officers but rather it's a guidance document that's just giving information about how the Department of Health interprets the laws and it doesn't contain requirements on local health officers themselves so I was discussing with Senator McDonnell before the meeting that perhaps if you want to pursue this issue of whether to require DOH to initiate rulemaking to adopt that handbook as a rule that perhaps Elkar would want to hear from the Department of Health about what's in the handbook whether it does actually contain requirements on health officers and what they have to do in their job or whether it really is just more informational without requirements if it is just informational without requirements on local health officers it doesn't seem that it would rise the level of being a procedure and therefore Elkar wouldn't have the authority to require them to initiate a rulemaking to adopt it as a rule I'll take one minute to say what the issue is the rabies health officers deal with rabies, dog bites kid health officer in the booklet of instructions and procedures has the authority to impound that dog for 10 days to see whether or not it has rabies and in the particular case the dog was neither registered nor did it have a rabies shot and the dog was taken to a kennel where it was put in the kennel and someone from the town office has called up and said release the dog so the kennel released the dog and the health officer had his ticket pulled and all of these things are they want to be written down as to what is expected if you put a dog in for 10 days of observation because it doesn't have a shot etc then they want to give an understandable procedure for who releases the dog from the kennel or how do you check one in or in this case the neighbors said the dog ran loose the house didn't have a pen the dog bit the child in the house and the health officer sent the dog to a kennel then two days later it was released through some procedure that is unknown and amorphous so that's the problem we try to solve maybe just setting a bill to one would be one solution and the other one would be the health department to take upon itself to put into rule or propose rules so that the various parties would know what their responsibilities were then they wouldn't be after the fact pointing fingers at one another worrying about it I would hope that we would I want to talk to the health department and then the next meeting would be that the committee would suggest to me Senator Gray when you said the health officer had his ticket pulled I'm not quite sure I understand what that means he was told he was no longer qualified to be a health officer to proceed to having a kennel for the dog so he sort of like built by the town there was a call from the town manager or the select board to say release the dog so why have a book saying that you have the authority to impound the dog is worrisome because it doesn't have a registration it hasn't had a rabies chat and they kept it and you don't have a place to keep it so there ought to be people should all be working out of the same playbook which I think is what they call rules so the department of health can also undertake that at their own initiative yep they could well yes I don't know what their statutory authority is for adopting it they may get into a separation of powers of shield but they can promulgate policies we don't usually get back far from what I've usually tried to resolve it and Elkar does have the authority to request they consider creation yes you could request that they do that and one of the things I wanted to note in this authority for Elkar to require an agency to initiate rulemaking to adopt as a rule a practice or a procedure it is only interestingly only initiate rulemaking you can't require them to adopt it as a rule say you have to start the process to adopt as a rule a practice or a procedure but you by statute can't require them to fully go through and adopt the rule finally so theoretically we're talking about asking them to do something that they never have to actually finish as it correct it's a simple problem a lot of what might be fun to drag them in and just see how it all flushes out I mean if it's a legitimate concern there will be a lot of speeders and we're going to put a bill through the legislature so I have a question for counsel so when I know sometimes there are written documents from agencies and departments that provide information like how to introduce something in 1950 but it doesn't determine somebody's action it doesn't state a requirement so this seems somehow different like you can't empower a dog for 10 days so it's like authorizing an action how is that not somehow I don't quite understand how something in print that says that doesn't have force of law behind it so yeah and this goes a lot of the question whether it is actually a procedure meaning it is a requirement on local health officers or whether instead under the APA it's more of a guidance document which is defined as something in writing that assists the public by providing the agency's current interpretation of the law so that's the question of whether it's just DOH interpreting what the law says that a health officer can do here's what the law says that you can do or whether and that would be a guidance document or whether instead it's procedure saying DOH is saying local health officers you must do this it's the requirement that we are putting upon you in this case it's wider than it says if a dog's been a person quarantined for 10 days if a new health officer there's no way to hold it responsibly and then once it gets there how do you let it out or does it get signed for when the day is over does it get signed the dog gets signed out or is it just to swipe and jump in and react to phone calls that's a good one does the count pay for that catalyne no no it's at the expense of the one in the three-ring lines or the guidance fellow would put into a three-ring health department guidelines and directions so are you city you're going to talk to the department I have a question on a different matter I think we're finished let me ask the senator should we wait to hear from you to see whether to add it to the agenda for next meeting put an update on that an update because I'll say to the client that I put in a bill and to do that by statute the health office you should be the authority to be able to whatever sort of things so I was traveling and I missed our last Elkar meeting and I don't see anything in the minutes to tell you whether or not but in the prior meeting on the two rules we were going to send a letter to the committee of jurisdiction that was on the energy I don't know if those letters came through Elkar approval and they could go on so that was on the RVs and CVs and just to remind Elkar objected only on the basis of the copyright issue the rule as initially filed with Elkar reported to allow private entities and hold a copyright over the rule which was an issue that you repeatedly or that you have through the third time now objected to since that time DPS has indicated that it would revise the rules to eliminate that copyright issue and Department of Public Service has submitted a revision to at least the RVs to eliminate that copyright issue and in those draft memos to committees of jurisdiction it was essentially in draft form because the draft memo still was holding out there the question of whether Elkar would move forward and certify its objections to the rule so at this point the memos have not been sent out because you haven't we did discuss the last meeting that you'll wait to review the revised proposed revisions that DPS is going to submit and then you can after you determine whether to certify your objection then we can revise the memo accordingly eliminate any reference to an objection if you choose not to move forward with an objection okay thanks right and as you kindly noted in the minutes it also included reviewing miscellaneous issues rate, implementation and enforcement enforcement was the thorniest of the things having pregnant regulations that weren't enforced was a concern so I can give you another copy of those draft memos it does address the enforcement concerns that were raised when you first considered RVs and CDs so I can just give you another copy of that memo as it stands right now and Charlene reminded that DPS did submit that it's revised version of the RVs great it's in your packet so that will be discussed at the next meeting I think they're waiting to see what you do with RVs before it moves forward with attempting to revise the CDs which I've received this morning to address the copyright issue thank you those in favor there's no opposition