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 successful at: (A) providing universal access to medically necessary home health services regardless of ability to pay or location of one’s residence; (B) providing high levels of access to home health services by Medicare-eligible beneficiaries; (C) providing high levels of supportive services under Vermont’s home- and community‑based waiver program; and (D) 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 the existing 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 continue to 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.
Sec. 3. 18 V.S.A. § 9402 is amended to read
§ 9402. DEFINITIONS
As used in this chapter, unless otherwise indicated:
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(12) “Home health agency” means a 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. § 9435(d) is added to read:
(d) Except for initial certification of new home health agencies or projects subject to review under subdivision 9434(a)(1) of this title, home health agencies supervised by the commissioner of aging and independent living under chapter 5 of Title 33 are excluded from this subchapter, provided the commissioner of aging and independent living finds that the proposed health care project is consistent with the health resource allocation plan and makes a written approval of the project. The home health agency shall submit a copy of the approval with a letter of intent to the commissioner.
Sec. 5. Title 33, chapter 5 is amended to read:
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Subchapter 1. General Provisions
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Subchapter 2. Home Health Agencies
§ 506. 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 competition.
§ 507. DEFINITIONS
As used in this subchapter, unless otherwise indicated:
(1) “Family member” means an individual who is related to a person who has received or currently is receiving home health services 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 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.
§ 508. HOME HEALTH SERVICES; LOCAL PLANS; BOARD COMPOSITION
(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 designated 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.
(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) Unless otherwise specified by rule, the board of each designated home health agency shall be representative of the demographic makeup of the area served by the agency. At least one-third of the members of the board shall be composed of individuals who have received or currently are receiving services from an agency 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 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) Annually, beginning February 1, 2007, the commissioner, as part of the department’s annual report, shall make findings and recommendations regarding the provision of home health services in Vermont by the designated home health agencies.
§ 509. DESIGNATION; Geographic Service Areas
(a) The commissioner shall specify by rule procedures for home health agency designation, redesignation, and designation revocation. The designation shall provide each designated agency an exclusive legislative franchise and territory within which it shall have the sole obligation and responsibility of providing home health services for four years, except as provided in subsection (c) of this section. No home health agency shall render home health services to patients residing in the designated service area of another home health agency, except as provided in sections 510 and 511 of this subchapter.
(b) Initial designations shall reflect the geographic service areas of existing home health agencies, including any agencies granted a certificate of need 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. Subsequent designations shall be consistent with certificates of need approved by the commissioner of banking, insurance, securities, and health care administration. 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) The initial designations made under subsection (b) of this section shall expire according to staggered terms prescribed by the commissioner as follows: four designations shall expire in two years, another four in three years, and those remaining shall expire in four years. Agencies seeking redesignation to continue providing home health services shall file an application for redesignation in a form and manner prescribed by the commissioner.
(d) The boundaries of designated service areas may be modified by the commissioner 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 grant of such application is consistent with the purposes of this subchapter and the health resource allocation plan established under section 9405 of Title 18 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.
(e) 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 510(b) of this subchapter when reviewing any applications for additional home health agencies to operate in any area of the state.
(f) The commissioner shall adopt 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 notice of the performance deficiency, and has failed to remediate the deficiency within the time specified in the notice.
(g) 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 511 of this subchapter.
§ 510. 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 rule, 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 existing 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 existing home health agencies with respect to access, cost, and quality of home health services.
(d) If the data collected by the commissioner under subsection (b) of this section identify access, cost, or quality issues in any area of the state, the commissioner will inform and direct the home health agency or agencies with identified issues to remedy them within a reasonable time period specified by rule by the commissioner. If such issues or problems are not remedied in a timely manner, the commissioner may consider revoking the agency’s designated status under subsection 509(f), contracting with another home health agency on either a temporary or permanent basis, or taking other corrective action.
§ 511. 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 specialized professional 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. In rendering such decision, the commissioner actively shall 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.
(c) The agreements listed in this subsection, which have been entered into by home health agencies prior to the effective date of this subchapter, have been reviewed by the general assembly and have been determined to be in the public interest and consistent with the purposes and policies set forth in this subchapter. Each of these agreements shall be valid and effective without the necessity of obtaining approval by the commissioner under subsection (b) of this section. In authorizing these agreements 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.
(1) The agreement between Orleans, Essex Visiting Nurse Association & Hospice and Lamoille Home Health Agency, Inc. d/b/a Lamoille Home Health & Hospice, dated as of January 29, 2001, related to the sharing of an information technology specialist.
(2) The agreement dated July 21, 1997 between Rutland Area VNA & Hospice and the Visiting Nurse Alliance of Vermont and New Hampshire (now known as VNA & Hospice of VT and NH ), regarding
community-provider liaison staff.
(3) The agreement between Rutland Area VNA & Hospice and Manchester Health Services and Dorset Nursing Association, related to hospice services.
(4) Agreements or understandings to pool or share certain staffing, including skilled nursing and other personnel, entered into on a temporary basis as defined by the commissioner to meet the particular needs of an agency’s patients and avoid temporary gaps in services.
§ 512. 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.
§ 513. 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, or their family members, to file complaints about access to or the cost or quality of home health services. In addition, the department of aging and independent living shall establish a toll-free telephone line dedicated to receiving consumer complaints.
Sec. 6. APPROPRIATION
The amount of $125,000.00 is appropriated from the general fund to the department of aging and independent living for the purpose of carrying out the provisions of this act.
Sec. 7. EFFECTIVE DATE
This act shall take effect upon passage.
The Vermont General Assembly
115 State Street