§ 7501. Definitions
As used in this chapter:
(1) “Long-term care” means services and supports received by an individual in a long-term
care facility or provided to an individual through the Choices for Care program contained
within Vermont’s Global Commitment to Health Section 1115 demonstration.
(2) “Long-term care facility” means a residential care home, an assisted living residence
or nursing home as defined by section 7102 of this title, or any other similar adult care home that is licensed or required to be licensed
pursuant to chapter 71 of this title.
(3) “Office” means the Office of the State Long-Term Care Ombudsman.
(4) “Older person” means an individual who is 60 years of age or older.
(5) “Representatives of the Office of the State Long-Term Care Ombudsman” or “representatives
of the Office” means the employees or volunteers designated by the State Long-Term
Care Ombudsman to carry out the duties of the Office, regardless of whether supervision
is provided by the Ombudsman, his or her designee, or an agency hosting a local Ombudsman
entity designated by the Ombudsman.
(6) “Resident” means an older person or an individual with disabilities who is 18 years
of age or older who resides in a long-term care facility or receives long-term care
through the Choices for Care program contained within Vermont’s Global Commitment
to Health Section 1115 demonstration.
(7) “Resident representative” means any of the following:
(A) an individual chosen by the resident to act on his or her behalf in order to support
the resident with decision making; accessing the resident’s own medical, social, or
other personal information; managing financial matters; receiving notifications; or
a combination of these;
(B) a person authorized by State or federal law, including an agent under a power of attorney
or advance directive, a representative payee, or another fiduciary, to act on the
resident’s behalf to support the resident with decision making; accessing the resident’s
own medical, social, or other personal information; managing financial matters; receiving
notifications; or a combination of these;
(C) legal representative, as used in Section 712 of the federal Older Americans Act, 42 U.S.C. § 3058g; or
(D) the resident’s court-appointed guardian or conservator.
(8) “State Long-Term Care Ombudsman” or “Ombudsman” means the individual selected from
among individuals with expertise and experience in the fields of long-term care and
advocacy who heads the Office of the State Long-Term Care Ombudsman and is responsible
personally, or through representatives of the Office, to fulfill the functions, responsibilities,
and duties set forth in 45 C.F.R. §§ 1324.13 and 1324.19.
(9) “Willful interference” means an individual’s action taken or failure to act in an
intentional attempt to prevent, interfere with, or impede the Ombudsman or a representative
of the Office from performing any of his or her functions, responsibilities, or duties. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 2005, No. 56, § 3, eff. June 13, 2005; 2013, No. 131 (Adj. Sess.), § 94, eff. May 20, 2014; 2017, No. 23, § 1.)
§ 7502. Office of the Long-Term Care Ombudsman established
The Office of the Long-Term Care Ombudsman is established in the Department of Disabilities,
Aging, and Independent Living to represent the interests of older persons and persons
with disabilities under 60 years of age receiving long-term care in accordance with
the provisions of this chapter and the Older Americans Act. 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 the State Long-Term Care Ombudsman. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 1993, No. 132 (Adj. Sess.), § 1; 1995, No. 174 (Adj. Sess.), § 4; 2005, No. 56, § 3, eff. June 13, 2005; 2005, No. 174 (Adj. Sess.), § 139; 2017, No. 23, § 1.)
§ 7503. Responsibilities of the Office
The Office shall:
(1) investigate and resolve complaints on behalf of individuals receiving long-term care;
(2) analyze and monitor the development and implementation of federal, State, and local
laws and of rules, 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 individuals receiving long-term care,
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 individuals receiving long-term care;
(6) establish policies and procedures for protecting the confidentiality of its clients
as required by the Older Americans Act;
(7) establish qualifications and training for the Ombudsman and representatives of the
Office, monitor their performance, and establish procedures for certifying staff and
volunteers;
(8) train persons and organizations in advocating for the interests of individuals receiving
long-term care;
(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 in long-term
care facilities, and the quality of long-term care and recommendations to address
identified problems; and
(11) perform such other activities as the Office deems necessary on behalf of individuals
receiving long-term care. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 2005, No. 56, § 3, eff. June 13, 2005; 2017, No. 23, § 1; 2021, No. 20, § 368.)
§ 7504. Authority of the Ombudsman and representatives of the Office
(a)(1) The Ombudsman, as head of the Office, shall have the responsibility for leadership
and management of the Office in coordination with the Department of Disabilities,
Aging, and Independent Living and, as applicable, with any other agency carrying out
the Ombudsman program.
(2) In addition to the functions set forth in 45 C.F.R. § 1324.13, the Ombudsman shall, personally or through representatives of the Office:
(A) analyze, comment on, and monitor the development and implementation of federal, State,
and local laws, rules, regulations, and other governmental policies and actions pertaining
to the health, safety, welfare, and rights of residents with respect to the adequacy
of long-term care facilities and long-term care in the State;
(B) recommend any changes in such laws, rules, regulations, policies, and actions that
the Office deems appropriate;
(C) facilitate public comment on the laws, rules, regulations, policies, and actions;
(D) provide leadership for the Office’s statewide systemic advocacy efforts on behalf
of residents, including coordinating systemic advocacy efforts implemented by representatives
of the Office; and
(E) provide information to public and private agencies, the General Assembly, the media,
and others regarding the problems and concerns of residents and the Ombudsman’s recommendations
regarding the problems and concerns.
(3) In addition to the functions set forth in 45 C.F.R. § 1324.13 and subdivision (2) of this subsection, the Ombudsman personally shall:
(A) establish or recommend policies, procedures, and standards for the Ombudsman program;
(B) require representatives of the Office to fulfill the duties set forth in 45 C.F.R. § 1324.19 in accordance with Ombudsman program policies and procedures;
(C) refuse, suspend, or remove the designation of a representative of the Office or a
local Ombudsman entity, or both, whenever the Ombudsman determines that the representative’s
or entity’s policies, procedures, or practices are in conflict with the laws, policies,
or procedures governing the Ombudsman program;
(D) establish training procedures for certification and continuing education for representatives
of the Office; and
(E) investigate allegations of misconduct by representatives of the Office of the State
Long-Term Care Ombudsman in the performance of Ombudsman program functions, responsibilities,
and duties.
(4) Notwithstanding any provision of law to the contrary, the actions of the State Long-Term
Care Ombudsman and representatives of the Office in carrying out the functions described
in this subsection shall not be construed to constitute lobbying as defined in 2 V.S.A. § 261.
(b) In fulfilling the responsibilities of the Office, the State Long-Term Care Ombudsman
and representatives of the Office of the State Long-Term Care Ombudsman are authorized
to:
(1) Hire or contract with persons or organizations to fulfill the purposes of this chapter.
(2) Communicate and visit with any individual receiving long-term care, provided that
the Ombudsman or the representative of the Office shall obtain permission from the
resident or the resident representative to enter the resident’s home. Long-term care
facilities shall provide the Ombudsman or the representative of the Office access
to their facilities, and long-term care providers shall ensure the Ombudsman and representatives
of the Office have access to the individuals for whom they provide long-term care,
as well as the name of and contact information for the resident representative, if
any, as needed to perform the Ombudsman’s functions and responsibilities or the duties
of the representatives of the Office.
(3) Have appropriate access to review the medical and social records of an individual
receiving long-term care as required by 42 U.S.C. § 3058g(b), as the Health Insurance Portability and Accountability Act of 1996 Privacy Rule,
45 C.F.R. Part 160 and 45 C.F.R. Part 164, subparts A and E, does not preclude release by covered entities of residents’ private
health information or other resident-identifying information to the Ombudsman program,
including residents’ medical, social, or other records; a list of resident names and
room numbers; or information collected in the course of a State or federal survey
or inspection process.
(4) Pursue administrative, judicial, or other remedies on behalf of individuals receiving
long-term care, including access orders from a 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) Adopt rules necessary to carry out the provisions of this chapter and those of the
Older Americans Act relating to the Ombudsman program.
(6) Take such further actions as are necessary in order to fulfill the purposes of this
chapter. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 2005, No. 56, § 3, eff. June 13, 2005; 2017, No. 23, § 1.)
§ 7505. Cooperation of State agencies
(a) All State agencies shall comply with reasonable requests of the Ombudsman for information
and assistance and shall comply with the requirements for State agencies set forth
in 45 C.F.R. § 1324.15.
(b) The Secretary of Human Services may adopt rules necessary to ensure that departments
within the Agency of Human Services cooperate with the Ombudsman’s office. Cooperation
shall include providing information regarding conditions and care in long-term care
facilities. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 2017, No. 23, § 1.)
§ 7506. Disclosure of information
(a) In determining whether and to what extent to disclose files, records, and other information
maintained by the Ombudsman program, the Ombudsman shall:
(1) have the sole authority to make or delegate determinations concerning the disclosure
of files, records, and other information maintained by the Ombudsman program, and
shall comply with Section 712(d) of the federal Older Americans Act, 42 U.S.C. § 3058g(d), in responding to requests for disclosure of files, records, and other information,
regardless of the format of the file, record, or other information; the source of
the request; or the sources of funding for the Ombudsman program;
(2) develop and adhere to criteria to guide the Ombudsman’s discretion in determining
whether to disclose the files, records, or other information; and
(3) develop and adhere to a process for appropriate disclosure of information maintained
by the Ombudsman’s office.
(b) Except as otherwise required by law, the Ombudsman program shall not disclose identifying
information relating to any resident on whom the Ombudsman program maintains files,
records, or information unless:
(1) the resident or resident representative communicates informed consent to the disclosure
and consent is provided in writing or through the use of auxiliary aids and services;
(2) the resident or resident representative communicates informed consent orally, visually,
or through the use of auxiliary aids and services and the Ombudsman or a representative
of the Office documents the consent contemporaneously in accordance with established
procedures; or
(3) disclosure is required by court order.
(c) The Ombudsman program shall not disclose identifying information relating to any complainant
on whom the Ombudsman program maintains files, records, or information unless:
(1) the complainant communicates informed consent to the disclosure and consent is provided
in writing or through the use of auxiliary aids and services;
(2) the complainant communicates informed consent orally, visually, or through the use
of auxiliary aids and services and the Ombudsman or a representative of the Office
documents the consent contemporaneously in accordance with established procedures;
or
(3) disclosure is required by court order. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 2017, No. 23, § 1.)
§ 7507. Immunity
No civil liability shall attach to the Ombudsman or any representative of the Office
for good faith performance of the functions, responsibilities, or duties imposed by
this chapter. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 2017, No. 23, § 1.)
§ 7508. Interference and retaliation
(a) A person who engages in willful interference as defined in this chapter shall be imprisoned
not more than one year or fined not more than $5,000.00, or both.
(b) A person who takes discriminatory, disciplinary, or retaliatory action against an
employee, resident, or volunteer of a long-term care facility; an entity that provides
long-term care through the Choices for Care program contained within Vermont’s Global
Commitment to Health Section 1115 demonstration; or an agency for any communication
made, or information disclosed, to aid the Ombudsman’s office in carrying out its
functions, duties, and responsibilities, unless the original communication or disclosure
was done maliciously or without good faith, shall be imprisoned not more than one
year or fined not more than $5,000.00, or both. An employee, resident, or volunteer
of a long-term care facility, an entity that provides long-term care through the Choices
for Care program contained within Vermont’s Global Commitment to Health Section 1115
demonstration, or an agency may seek damages in Superior Court against a person who
takes such action prohibited by this subsection. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 2013, No. 131 (Adj. Sess.), § 95; 2017, No. 23, § 1.)
§ 7509. Conflict of interest
(a) The Department of Disabilities, Aging, and Independent Living and the Ombudsman shall
identify organizational conflicts of interest that may impact the effectiveness and
credibility of the Ombudsman’s office and shall remove or remedy any such conflicts.
Organizational conflicts include placement of the Ombudsman’s office, or requiring
that the Ombudsman or a representative of the Office perform conflicting activities,
in an organization that:
(1) is responsible for licensing, surveying, or certifying long-term care facilities;
(2) is an association or an affiliate of an association of long-term care facilities or
of any other entity that provides long-term care through the Choices for Care program
contained within Vermont’s Global Commitment to Health Section 1115 demonstration;
(3) has any ownership or investment interest in, or receives grants or donations from,
a long-term care facility;
(4) has any officer or governing board member with any ownership, investment, or employment
interest in a long-term care facility or an entity that provides long-term care through
the Choices for Care program contained within Vermont’s Global Commitment to Health
Section 1115 demonstration;
(5) provides long-term care to residents;
(6) provides long-term care coordination or case management for residents;
(7) sets reimbursement rates for long-term care facilities;
(8) provides adult protective services;
(9) is responsible for eligibility determinations for patients regarding Medicaid or other
public benefits;
(10) conducts preadmission screening for long-term care facility placements;
(11) makes decisions regarding admission or discharge of individuals to or from long-term
care facilities; or
(12) provides guardianship, conservatorship, or other fiduciary or surrogate decision-making
services for residents.
(b) To avoid individual conflicts of interest that may impact the effectiveness and credibility
of the work of the Ombudsman’s office, the Ombudsman shall develop and implement policies
and procedures to ensure that neither the Ombudsman nor representatives of the Office
are required or permitted to hold positions or perform duties that would constitute
an individual conflict of interest. Individual conflicts of interest for an Ombudsman,
representatives of the Office, and members of their immediate families include:
(1) direct involvement in the licensing or certification of a long-term care facility;
(2) ownership, operational, or investment interest in an existing or proposed long-term
care facility or other entity that provides long-term care through the Choices for
Care program contained within Vermont’s Global Commitment to Health Section 1115 demonstration;
(3) an individual’s employment by, or participation in the management of, a long-term
care facility in this State or an individual’s employment by the owner or operator
of any long-term care facility in this State;
(4) receipt of, or the right to receive, directly or indirectly, remuneration under a
compensation arrangement with an owner or operator of a long-term care facility;
(5) acceptance of gifts or gratuities of significant value from a long-term care facility
or its management, or from a resident or resident representative of a long-term care
facility in which the Ombudsman or a representative of the Office provides services,
except if the individual has a personal relationship with a resident or resident representative
separate from the individual’s role as the Ombudsman or representative of the Office;
(6) acceptance of money or any other consideration from anyone other than the Ombudsman’s
office, or an entity approved by the Ombudsman, for the performance of an act in the
regular course of duties of the Ombudsman or of representatives of the Office, without
the Ombudsman’s approval;
(7) serving as a guardian, conservator, or in another fiduciary or surrogate decision-making
capacity for a resident of a long-term care facility in which the Ombudsman or a representative
of the Office provides services; and
(8) providing services to residents of a long-term care facility in which an immediate
family member resides.
(c) The Ombudsman, consistent with the requirements of the Older Americans Act, shall
be able to speak on behalf of the interest of individuals receiving long-term care
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 Disabilities, Aging, and Independent Living shall establish
a committee of not fewer than five persons, who represent the interests of individuals
receiving long-term care and who are not State employees, for the purpose of ensuring
that the Ombudsman program is free from conflicts of interest. The Commissioner shall
solicit from this committee its assessment of the Ombudsman program’s capacity to
operate in accordance with this section and shall submit that assessment as an appendix
to the report required under subdivision 7503(10) of this title. The Department, in consultation with this committee, shall establish a process for
periodic review and identification of conflicts within the Ombudsman program. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 2005, No. 56, § 3, eff. June 13, 2005; 2017, No. 23, § 1; 2017, No. 113 (Adj. Sess.), § 195.)
§ 7510. Legal assistance
(a)(1) A contract for Ombudsman services shall require the Ombudsman program to secure adequate
legal counsel that is available, has competencies relevant to the legal needs of the
Ombudsman program and of residents, and is without conflict of interest, in order
to:
(A) provide consultation and representation as needed to enable the Ombudsman program
to protect the health, safety, welfare, and rights of residents; and
(B) provide consultation or representation, or both, as needed to assist the Ombudsman
and representatives of the Office in the performance of their official functions,
responsibilities, and duties, including complaint resolution and systems advocacy.
(2) Notwithstanding the provisions of subdivision (1) of this subsection, if the Ombudsman
or representatives of the Office are State employees, the Office of the Attorney General
shall provide legal representation and advice to the Ombudsman and the representatives
of the Office.
(b) Legal representation of the Ombudsman program by the Ombudsman or a representative
of the Office who is a licensed attorney shall not by itself constitute adequate legal
counsel. (Added 1989, No. 251 (Adj. Sess.), § 1; amended 1993, No. 132 (Adj. Sess.), § 2; 2017, No. 23, § 1.)