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H.543

AN ACT RELATING TO LONG-TERM CARE WAIVER

     The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LONG-TERM CARE MEDICAID 1115 WAIVER

The department of aging and independent living shall implement the long‑term care Medicaid 1115 waiver by rule in fiscal year 2006 upon approval from the Centers for Medicare and Medicaid Services.  The rules for operation of the 1115 waiver shall include criteria and standards for eligibility, levels of assistance, assessments, and reviews, and the appeal and fair hearing process.  If the long-term care Medicaid 1115 waiver is included in a broader Medicaid waiver, including the “global commitment,” the provisions of this act shall apply to the relevant portions of that waiver.

Sec. 2.  LONG-TERM CARE OMBUDSMAN

The department of aging and independent living shall provide the long‑term care ombudsman established under chapter 75 of Title 33 funding from the department’s current appropriation to create two full‑time equivalent positions to serve individuals who receive services under the long-term care Medicaid 1115 waiver.

Sec. 3.  33 V.S.A. chapter 75 is amended to read:

CHAPTER 75.  STATE LONG-TERM CARE OMBUDSMAN

§ 7501.  DEFINITIONS

For purposes of this chapter:

(1)  “Long-term care” means care or services received by an individual in a long-term care facility or provided to an individual under the long-term care Medicaid 1115 waiver.

(2)  “Long-term care facility” means a residential care home or an assisted living residence or nursing home as defined by section 7102 of this title.

(1)(3)  “Office” means the office of the state long-term care ombudsman.

(2)(4)  “Older person” means a person an individual who is 60 years of age or older.

(3)(5)  “Ombudsman” means a person an individual who intervenes on behalf of a private individual to resolve complaints and, in this chapter, refers to any person or organization designated by the state ombudsman as part of the office of the state long-term care ombudsman, in accordance with the Older Americans Act.

(4)  “Long-term care facility” means a residential care home or nursing home as defined by section 7102 of this title.

§ 7502.  OFFICE OF THE LONG-TERM CARE OMBUDSMAN

              ESTABLISHED

The office of the long-term care ombudsman is established in the department of aging and disabilities independent living to represent the interests of older persons and persons with disabilities under the age of 60 residing in receiving long‑term care facilities in accordance with the provisions of this chapter and the Older Americans Act.  For the purposes of this section, long-term care facilities shall include facilities in which placements are made by, and facilities funded through, the department of mental health and mental retardation aging and independent living, division of disabilities and aging services.  Subject to the provisions of 42 U.S.C. § 3058g, the department may operate the office and carry out the program, directly or by contract or other arrangement with any public agency or nonprofit private organization.  The office shall be headed by an individual, to be known as the state long-term care ombudsman, who shall be selected from among individuals with expertise and experience in the fields of long-term care and advocacy.

§ 7503.  RESPONSIBILITIES OF THE OFFICE

The office shall:

(1)  Investigate and resolve complaints on behalf of residents of individuals receiving long-term care facilities.

(2)  Analyze and monitor the development and implementation of federal, state, and local laws, and of regulations and policies relating to long‑term care, long-term care facilities, or providers of long-term care and recommend changes it deems appropriate.

(3)  Provide information to the public, agencies, legislators and others, as it deems necessary, regarding problems and concerns of residents of individuals receiving long-term care facilities, including recommendations related to such problems and concerns.

(4)  Develop and establish policies and procedures for involvement by volunteers in the work of the office.

(5)  Promote the development of citizen and consumer organizations in the work of the office and the quality of life of residents of individuals receiving long-term care facilities.

(6)  Establish by rule procedures for protecting the confidentiality of its clients as required by the Older Americans Act.

(7)  Establish by rule qualifications and training for ombudsmen, monitor their performance, and establish by rule procedures for certifying staff and volunteer ombudsmen.

(8)  Train persons and organizations in advocating for the interests of residents of individuals receiving long-term care facilities.

(9)  Develop and implement a uniform reporting system to collect and analyze information relating to complaints by individuals receiving long‑term care and conditions in long-term care facilities.

(10)  Submit to the general assembly and the governor on or before January 15 of each year a report on complaints by individuals receiving long‑term care, conditions and care in long-term care facilities, and the quality of long-term care and recommendations to address identified problems.

(11)  Perform such other activities as the office deems necessary on behalf of residents of individuals receiving long-term care facilities.

§ 7504.  AUTHORITY OF THE STATE OMBUDSMAN

In fulfilling the responsibilities of the office, the state ombudsman may:

(1)  Hire or contract with persons or organizations to fulfill the purposes of this chapter.

(2)  Communicate and visit with any resident of a individual receiving long-term care facility, provided that the ombudsman shall obtain permission from the individual or the individual’s guardian or legal representative to enter the individual’s home.  Toward that end, long-term care facilities shall provide the state ombudsman access to their facilities, and long-term care providers shall ensure the state ombudsman access to individuals for whom they provide long-term care.

(3)  With the written consent of the resident or the resident’s guardian or legal representative, review the records of residents of long-term care facilities.  Toward that end, long-term care facilities shall provide the state ombudsman access to records relating to their residents. Have appropriate access to review the medical and social records of an individual receiving long-term care services as required by 42 U.S.C. § 3058g(b).

(4)  Pursue administrative, judicial, or other remedies on behalf of residents of individuals receiving long-term care facilities, including access orders from a district or superior judge when access under subdivision (2) or (3) of this section has been unreasonably denied and all other reasonable attempts to gain access have been pursued and have failed.

(5)  Delegate to ombudsmen any part of the state ombudsman’s authority.

(6)  Adopt rules necessary to carry out the provisions of this chapter and those of the Older Americans Act relating to the ombudsman program.

(7)  Take such further actions as are necessary in order to fulfill the purposes of this chapter.

* * *

§ 7509.  CONFLICT OF INTEREST

(a)  The department by rule shall prohibit any ombudsman or immediate family member of any ombudsman from having any interest in a long-term care facility or provider of long‑term care which creates a conflict of interest in carrying out the ombudsman’s responsibilities under this chapter.

(b)  The state ombudsman, consistent with the requirements of the Older Americans Act, shall be able to speak on behalf of the interest of residents of individuals receiving long-term care facilities and to carry out all duties prescribed in this chapter without being made subject to any disciplinary or retaliatory personnel or other action as a consequence of so doing.  The commissioner of aging and disabilities independent living shall establish a committee of no fewer than five persons, who represent the interests of residents of individuals receiving long-term care facilities and who are not state employees, for the purpose of assuring that the state ombudsman is able to carry out all prescribed duties without a conflict of interest.  The commissioner shall solicit from this committee its assessment of the state ombudsman’s capacity to perform in accordance with this subsection and shall submit that assessment as an appendix to the report required under section subdivision 7503(10) of this title.  The department, in consultation with this committee, shall establish rules which implement this subsection.

Sec. 4.  Sec. 121(h) of No. 62 of the Acts of 1999 is repealed and 33 V.S.A. § 1902 is amended to read:

§ 1902.  QUALIFICATION FOR MEDICAL ASSISTANCE

(a)  In determining whether a person is medically indigent, the commissioner secretary of the agency of human services shall prescribe and use an income standard and requirements for eligibility which will permit the receipt of federal matching funds under Title XIX of the Social Security Act.

(b)  Workers with disabilities whose income is less than 250 percent of the federal poverty level shall be eligible for Medicaid.  The income also must not exceed the Medicaid protected income level for one or the supplemental security income (SSI) payment level for two, whichever is higher, after disregarding all earnings of the working individual with disabilities, any Social Security disability insurance benefits, and any veteran’s disability benefits.  Earnings of the working individual with disabilities shall be documented by evidence of Federal Insurance Contributions Act tax payments, Self‑employment Contributions Act tax payments, or a written business plan approved and supported by a third-party investor or funding source.  The resource limit for this program shall be $5,000.00 for an individual and $6,000.00 for a couple at the time of enrollment in the program.  Assets attributable to earnings made after enrollment in the program shall be disregarded.

Sec. 5.  AGENCY OF HUMAN SERVICES; EXPEDITED RULEMAKING

Notwithstanding the provisions of 3 V.S.A. chapter 25, the secretary of human services shall adopt rules to implement the provisions of this act pursuant to the following:

(1)  The secretary shall file final proposed rules with the secretary of state and the joint legislative committee on administrative rules under 3 V.S.A. § 841, after publication, in three daily newspapers with the highest average circulation in the state, of a notice that lists the rules to be adopted pursuant to this process and a seven-day public comment period following publication.

(2)  The secretary shall file final proposed rules with the joint legislative committee on administrative rules within 14 days after the effective date of this act.

(3)  The joint legislative committee on administrative rules shall review and may approve or object to the final proposed rules under 3 V.S.A. § 842, except that its action shall be completed no later than 14 days after the final proposed rules are filed with the committee.

(4)  The secretary may adopt a properly filed final proposed rule after the passage of 14 days from the date of filing final proposed rules with the joint legislative committee on administrative rules or after receiving notice of approval from the committee, provided the secretary:

(A)  has not received a notice of objection from the joint legislative committee on administrative rules; or

(B)  after having received a notice of objection from the committee, has responded pursuant to 3 V.S.A. § 842.

(5)  Rules adopted under this section shall be effective upon being filed with the secretary of state and the joint legislative committee on administrative rules and shall have the full force and effect of rules adopted pursuant to 3 V.S.A. chapter 25.  Rules filed by the secretary of human services with the secretary of state pursuant to this section shall be deemed to be in full compliance with 3 V.S.A. § 843 and shall be accepted by the secretary of state and joint legislative committee on administrative rules if filed with a certification by the secretary of human services that the rule is required to meet the purposes of this section.

Sec. 6.  EFFECTIVE DATE

This act shall take effect upon passage.

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us