NO. 57. AN ACT RELATING TO HOME HEALTH AGENCIES.
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. SHORT TITLE
This act may be cited as the “Home Health Services Act of 2005.”
Sec. 2. FINDINGS
The general assembly makes the following findings:
(1) Delivery of health and supportive services to patients in their homes is generally much less costly than providing for their care in an institutional health care setting, such as a nursing home or hospital. It also is the preferred course of treatment by many patients and their families in local communities throughout the state, which should be encouraged and promoted in the public interest.
(2) The existing home health system has been highly successful at providing: (A) universal access to medically necessary home health services regardless of ability to pay or location of one’s residence; (B) high levels of access to home health services by Medicare-eligible beneficiaries; and (C) high levels of supportive services under Vermont’s home- and community‑based waiver program, while maintaining one of the lowest average costs per visit of any state in the nation.
(3) The general assembly recognizes that the substantial achievements of Vermont’s existing network of community-based home health agencies have been made possible under the direction, approval, and encouragement of state and local government, consistent over many decades, and that these efforts have supported a collaborative, noncompetitive relationship among the agencies.
(4) It is in the public interest to maintain and strengthen Vermont’s home health system under the active supervision and oversight of the commissioner of aging and independent living and within the broader framework of state health planning and resource allocation in order to ensure that all Vermonters have access to a comprehensive set of high‑quality home health services at a reasonable cost.
(5) The clearly articulated policy and regulatory program of active supervision codified by this act is intended to have the effect of granting state action immunity for actions that might otherwise be considered to be in violation of state or federal antitrust laws, including actions previously taken in furtherance of the state policy and program confirmed herein.
* * * Certificate of Need * * *
Sec. 3. 18 V.S.A. § 9402 is amended to read:
§ 9402. DEFINITIONS
As used in this chapter, unless otherwise indicated:
* * *
(12) “Home health agency” means a for-profit or not-for-profit health care facility providing part-time or intermittent skilled nursing services and at least one of the following other therapeutic services made available on a visiting basis, in a place of residence used as a patient’s home: physical, speech, or occupational therapy; medical social services; home health aide services; or other non-nursing therapeutic services, including the services of nutritionists, dieticians, psychologists, and licensed mental health counselors.
(13) “Home health services” means activities and functions of a home health agency, including but not limited to nurses, home health aides, physical therapists, occupational therapists, speech therapists, medical social workers, or other non-nursing therapeutic services directly related to care, treatment, or diagnosis of patients in the home.
(14) “Hospital” means an acute care hospital licensed under chapter 43 of this title and falling within one of the following four distinct categories, as defined by the commissioner by rule:
(A) Category A1: tertiary teaching hospitals.
(B) Category A2: regional medical centers.
(C) Category A3: community hospital systems.
(D) Category A4: critical access hospitals.
“Managed care organization” means any financing mechanism or system that
manages health care delivery for its members or subscribers, including health
maintenance organizations and any other similar health care delivery system or
“Public oversight commission” means the commission established in section 9407
of this title. (15)(17)
“Unified health care budget” means the budget established in accordance with
section 9406 of this title. (16)(18)
“State health plan” means the plan developed under section 9405 of this title.
Sec. 4. 18 V.S.A. § 9434(a)(3) is amended to read:
(3) The offering of any home health service, or the transfer or conveyance of more than a 50 percent ownership interest of a home health agency.
Sec. 5. 18 V.S.A. § 9435(d) is added to read:
(d) Excluded from this subchapter are redesignations, designation revocations, and collaborative agreements of home health agencies subject to the supervision of the commissioner of aging and independent living under chapter 5 of Title 33.
Sec. 6. 18 V.S.A. § 9446 is added to read:
§ 9446. HOME HEALTH AGENCIES; GEOGRAPHIC SERVICE AREAS
The terms of a certificate of need relating to the boundaries of the geographic service area of a home health agency may be modified by the commissioner, in consultation with the commissioner of aging and independent living, after notice and opportunity for hearing, or upon written application to the commissioner by the affected home health agencies or consumers, demonstrating a substantial need therefor. Service area boundaries may be modified by the commissioner to take account of natural or physical barriers that may make the provision of existing services uneconomical or impractical, to prevent or minimize unnecessary duplication of services or facilities, or otherwise to promote the public interest. The commissioner shall issue an order granting such application only upon a finding that the granting of such application is consistent with the purposes of subchapter 1A of chapter 63 of Title 33 and the health resource allocation plan established under section 9405 of this title and after notice and an opportunity to participate on the record by all interested persons, including affected local governments, pursuant to rules adopted by the commissioner.
* * * Department of Aging and Independent Living * * *
Sec. 7. 33 V.S.A. chapter 63, subchapter 1 is repealed.
Sec. 8. 33 V.S.A. chapter 63, subchapter 1A is added to read:
Subchapter 1A. General Provisions
§ 6301. POLICY
It is the policy of the state of Vermont to ensure that all residents in every town within the state have access to comprehensive, medically necessary home health services without regard to their ability to pay for those services and to ensure that such services are delivered in an efficient and cost-effective manner, under a regulatory framework designed to control costs and ensure access to high quality home health services based on a model that promotes cooperation and nonduplication of services, rather than unregulated competition.
§ 6302. DEFINITIONS
As used in this subchapter, unless otherwise indicated:
(1) “Family member” means an individual who is related to a person by blood, marriage, civil union, or adoption, or who considers himself or herself to be family based upon bonds of affection, and who currently shares a household with such a person or has, in the past, shared a household with that person. For purposes of this definition, the phrase “bonds of affection” means enduring ties that do not depend on the existence of an economic relationship.
(2) “Home health agency” means a for-profit or not-for-profit health care facility providing part-time or intermittent skilled nursing services and at least one of the following other therapeutic services made available on a visiting basis, in a place of residence used as a patient’s home: physical, speech, or occupational therapy; medical social services; home health aide services; or other non-nursing therapeutic services, including the services of nutritionists, dieticians, psychologists, and licensed mental health counselors.
(3) “Home health services” means activities and functions of a home health agency, including but not limited to nurses, home health aides, physical therapists, occupational therapists, speech therapists, medical social workers, or other non-nursing therapeutic services directly related to care, treatment, or diagnosis of patients in the home.
§ 6303. HOME HEALTH SERVICES; LOCAL PLANS; BOARD
(a) Consistent with the requirements of this section, the commissioner of aging and independent living shall adopt by rule minimum program standards for the purpose of providing quality oversight of the home health agencies authorized to provide home health services under this subchapter. The minimum program standards shall include performance standards, quality indicators, grievance and complaint procedures, patient safety standards, consumer input mechanisms, accessibility standards, medical necessity standards, and practices to ensure confidentiality of patient records. The rules shall include also minimum program standards to ensure home health agencies do not discriminate in the provision of services based on income, funding source, geographic status, or severity of health needs and to ensure the attainment or continuance of universal access to medically necessary home health services.
(b) Upon initial designation or redesignation under this subchapter, each designated home health agency shall prepare for the commissioner’s approval a local community services plan, describing the need for home health services within the agency’s geographic service area and the methods by which the agency will provide those services. The plan shall include a schedule for the anticipated provision of new or additional services for the next four years and shall specify the resources which are needed by and available to the agency to implement the plan. The plan shall reflect public input from the residents of the agency’s geographic service area.
(c) On or before January 1, 2008, the board of each not-for-profit designated home health agency shall be representative of the demographic makeup of the area or areas served by the agency or by the health care facility governed by the board. A majority of the members of the board shall be composed of individuals who have received or currently are receiving services from the agency or from the health care facility governed by the board and family members of individuals who have received or currently are receiving such services. The board president shall survey board members annually and certify to the commissioner that the composition of the board meets the requirements of this subsection. The composition of the board shall also be confirmed by the agency’s annual independent audit. The board shall have overall responsibility and control of the planning and operation of the home health agency, including development of the local community services plan.
(d) On or before January 1, 2008, each for-profit designated home health agency shall have an advisory board, which shall be representative of the demographic makeup of the area or areas served by the agency. A majority of the members of the advisory board shall be composed of individuals who have received or currently are receiving services from the agency and family members of individuals who have received or currently are receiving such services. The advisory board president shall survey board members annually and certify to the commissioner that the composition of the board meets the requirements of this subsection. The composition of the board shall also be confirmed by the agency’s annual independent audit. The advisory board shall meet at least twice per year and shall advise the agency’s board of directors with respect to planning and operation of the home health agency, patient needs, and development of the local community services plan.
(e) Annually, beginning February 1, 2007, the commissioner, as part of the department’s annual report to the general assembly, shall make findings and recommendations regarding the provision of home health services in Vermont by the designated home health agencies.
§ 6304. DESIGNATION; Geographic Service Areas
(a) The commissioner shall specify by rule standards and procedures for home health agency designation, redesignation, and designation revocation. The designation shall provide each designated agency a franchise to provide home health services within one or more geographic service areas within which it shall have the obligation and responsibility of providing home health services for four years, except as provided in subsection (d) of this section. No home health agency shall render home health services to patients residing in a designated service area without being designated by the commissioner to serve patients in that service area.
(b) Initial designations shall reflect the geographic service areas of existing home health agencies and any agencies contained in a certificate of need granted under chapter 221 of Title 18 prior to or following the effective date of this section, provided the certificate of need, if not yet approved, was pending on the effective date. The initial geographic service areas shall include:
(1) Addison County Home Health & Hospice, Inc.: the cities and towns of Addison County, with the exception of Hancock and Granville.
(2) VNA & Hospice of Southwestern Vermont Health Care, Inc.: the towns of Pownal, Bennington, Woodford, Shaftsbury, and Glastenbury.
(3) Franklin County Home Health Agency, Inc.: the cities and towns of Franklin County.
(4) VNA of Chittenden and Grand Isle Counties, Inc.: The cities and towns of Chittenden and Grand Isle counties.
(5) Lamoille Home Health Agency, Inc. d/b/a Lamoille Home Health & Hospice: the cities and towns of Lamoille County.
(6) Central Vermont Home Health & Hospice, Inc.: the cities and towns of Washington County and the towns of Orange, Williamstown, and Washington.
(7) Dorset Nursing Association, Inc.: the towns of Dorset, Rupert, and Pawlet.
(8) Rutland Area VNA & Hospice, Inc.: the cities and towns of Rutland County, with the exception of Pawlet.
(9) Manchester Health Services, Inc.: the towns of Manchester, Arlington, Sunderland, and Sandgate.
(10) Northern Counties Health Care, Inc., d/b/a Caledonia Home Health Care & Hospice: the cities and towns of Caledonia County and the towns of Concord, Lunenburg, Victory, Granby, Guildhall, Maidstone, East Haven, and Greensboro.
(11) Orleans Essex VNA & Hospice, Inc.: the cities and towns of Orleans County with the exception of Greensboro and the towns, gores, and grants of Norton, Canaan, Averill, Lewis, Lemington, Bloomfield, Brunswick, Brighton, Ferdinand, Avery’s Gore, Warren’s Gore, and Warner’s Grant.
(12) VNA & Hospice of Vermont and New Hampshire, Inc.: the cities and towns of Windsor County, Windham County, Orange County (with the exception of the towns of Orange, Washington, and Williamstown) and the towns of Hancock, Granville, Searsburg, Readsboro, Stamford, Landgrove, Winhall, and Peru.
(c) Designations for new home health agencies shall be established pursuant to certificates of need approved by the commissioner of banking, insurance, securities, and health care administration. Thereafter, designations shall be subject to the provisions of this subchapter.
(d) The initial designations made under subsection (b) of this section shall expire according to staggered terms prescribed by the commissioner.
(e) Agencies seeking redesignation to continue providing home health services shall file an application for redesignation in a form and manner prescribed by the commissioner.
(f) In reviewing applications from agencies seeking to expand or reduce the offering of home health services, the commissioner shall determine whether the application is consistent with the health resource allocation plan established under section 9405 of Title 18. In addition, the commissioner shall use the data collected under subsection 6305(b) of this title when reviewing any applications for additional home health agencies to operate in any area of the state.
(g) The commissioner shall adopt by rule standards and procedures for designation revocation. In particular, an agency’s designation shall be revoked if:
(1) the local community services plan is inadequate to meet the needs of the area served by the home health agency;
(2) the agency, for reasons other than the lack of resources, has failed or refused to implement an otherwise adequate local community services plan; or
(3) the agency has failed to meet the performance standards adopted under this subchapter, has been given written notice of the performance deficiency, and has failed to remediate the deficiency within the time specified in the notice.
(h) Nothing in this subchapter shall be construed to prohibit collaboration among two or more such home health agencies in delivering needed services to patients pursuant to an affiliation, sharing, or other agreement under appropriate circumstances approved by the commissioner under section 6306 of this title.
§ 6305. Review of Access, Cost, and Quality Issues;
(a) The commissioner shall exercise such duties and responsibilities as shall be necessary for the implementation of this subchapter and for the active, ongoing supervision of the activities of the home health agencies under this subchapter.
(b) In a form and manner and at intervals prescribed by the commissioner, the commissioner shall collect and analyze data regarding access to and the cost and quality of home health services in Vermont. Such data shall include: information on complaints, waiting lists, numbers of individuals ineligible for services, numbers of individuals eligible for but not provided services, numbers of patients served under and over the age of 65, total number of visits and hours provided to patients by each of the existing home health agencies; the results of patient surveys conducted by the home health agencies; data pertaining to federal and state surveys; scoring by any national accrediting organization, charitable and subsidized programs and services for uninsured or low income persons in their respective communities; copies of audited financial statements and annual cost reports; and any other quality indicators or data deemed relevant by the commissioner to monitor and evaluate access to and the cost and quality of home health services by the designated home health agencies.
(c) The commissioner shall consider the data collected under subsection (b) of this section in undertaking active, ongoing supervision to monitor performance of the designated home health agencies with respect to access, cost, and quality of home health services.
(d) If the commissioner determines that a home health agency has failed to comply with any performance standards established by the commissioner related to access, cost, or quality issues in any area of the state, or has violated a rule or provision of this subchapter, the commissioner may investigate and enforce the provisions of this subchapter pursuant to the authority and procedures conferred upon the commissioner under chapter 71 of this title as if the home health agency were a nursing home, except that the commissioner shall adopt by rule penalties specific to home health agencies.
§ 6306. Collaboration and Shared Service Agreements
(a) In order to further the state’s goals of facilitating universal access to a full range of quality home health services at the lowest practicable cost throughout the state, the home health agencies are authorized and encouraged by the general assembly to enter into and perform the following types of cooperative arrangements among two or more agencies:
(1) agreements or understandings to pool or share one or more administrative functions, services, or expenses;
(2) agreements or understandings to pool or share certain staffing, including skilled nursing and other personnel;
(3) group purchasing arrangements designed to obtain the benefits of volume discounts and achieve other cost savings and efficiencies for the benefit of consumers;
(4) agreements with managed care plans or other third-party payers, at their request and on a nonexclusive basis, to provide their members with prescribed home health services on discounted groupwide or statewide rates, terms, and conditions;
(5) agreements or understandings to provide home health services, on an occasional or sporadic basis, to patients located in the designated service area of another home health agency due to special needs or other exceptional circumstances preventing the prompt and efficient servicing of such patients by that other home health agency or where otherwise necessary to achieve the purposes of this subchapter; and
(6) agreements related to the sharing of information and technology.
(b) No agreement or understanding of the types specified in subsection (a) of this section, which are entered into subsequent to the effective date of this subchapter, shall be valid or effective unless and until it has received the written approval of the commissioner. Any such agreement or understanding shall be submitted to the commissioner for approval or disapproval within 30 days of execution, and the commissioner shall have 90 days from receipt of such filing within which to approve or disapprove the agreement.
(c) Any and all agreements or understandings of the types specified in subsection (a) of this section, which have been entered into prior to the effective date of this subsection, shall be valid and effective for 12 months following the effective date of this subchapter but not thereafter, unless they have received within that 12 month period the written approval of the commissioner. The commissioner shall have 90 days from receipt of such filing within which to approve or disapprove the agreement.
(d) In rendering a decision on any application submitted under subsection (b) or (c), the commissioner shall actively scrutinize the terms of the proposed agreement and consider all relevant facts and circumstances surrounding the agreement, as determined in the commissioner’s discretion and pursuant to procedures specified by rule by the commissioner. The commissioner shall approve the agreement only if the commissioner determines that it is in the public interest and is consistent with the purposes and policies set forth in this subchapter, including ensuring that all residents of the state have access to quality home health services delivered in an efficient and cost-effective manner.
(e) Agreements or understandings to pool or share certain staffing, including skilled nursing and other personnel, entered into on a temporary basis, as that term may be defined by the commissioner, to meet the particular needs of an agency’s patients and avoid temporary gaps in services shall be valid and effective without the necessity of obtaining approval by the commissioner under subsection (b) or (c) of this section.
(f) In authorizing the agreements and understandings of the types specified in subsection (a) of this section and the activities conducted thereunder, the general assembly intends that its action have the effect of permitting and granting state action immunity for any actions that might otherwise be considered to be in violation of state or federal antitrust laws, in order to accomplish the public policy objectives of this subchapter.
§ 6307. CONTRACTS WITH NONDESIGNATED AGENCIES
The commissioner may enter into agreements with home health agencies or with any public or private agency for the purpose of establishing specialized home health services needed but not available from the designated home health agencies.
§ 6308. COMPLAINT PROCESS
The commissioner shall establish by rule standards and procedures ensuring that each designated home health agency has in place sufficient minimum grievance procedures allowing recipients of home health services, their family members, and employees of a home health agency to file complaints about access to or the cost or quality of home health services, or about other matters related to the operations of the home health agency. In addition, the rules shall ensure that the department of aging and independent living establishes and maintains an external complaint process for clients, their family members, and employees of a home health agency, including a toll-free telephone line dedicated to receiving consumer complaints.
Sec. 9. EFFECTIVE DATE
This act shall take effect upon passage.
Approved: June 13, 2005
The Vermont General Assembly
115 State Street