Section I GENERAL PROVISIONS 1.1 Introduction The State regulates Homes for the Terminally Ill for the dual purposes of protecting the welfare and rights of residents and assuring that they receive an appropriate quality of care. Toward that end, these regulations are designed to foster personal independence on the part of residents and a home-like environment in the homes.
Homes for the Terminally Ill are licensed to provide services specifically for people who are terminally ill. These services include room, board, personal care, general supervision, medication management, nursing and other assistance for that individual's emotional, spiritual and physical well being.
1.2 Statutory Authority Homes for the Terminally Ill are subject to the provisions of 33 V.S.A. Chapter 71. The Agency of Human Services has designated the Department of Aging and Disabilities, Division of Licensing and Protection, as the licensing and regulatory agency for Homes for the Terminally Ill. That statute and the provisions of these regulations guide them in their work.
1.3 Statement of Intent Upon the effective date of these regulations, all Homes for the Terminally Ill in Vermont shall be required to be licensed and to adhere to the regulations as adopted.
1.4 Exception and Severability If any provision of these regulations, or the application of any provision of these regulations, is determined to be invalid, the determination of invalidity shall not affect any other provision of these regulations or the application of any other provision of these regulations.
1.5 Taxes The applicant and licensee shall be in good standing with the Vermont Department of Taxes, pursuant to 32 V.S.A. § 3113, at all times. Failure to do so shall result in denial or revocation of license.
1.6 Material Misstatements Any applicant or licensee who makes a material misstatement may be subject to denial of license, monetary fine, suspension and/or revocation of license.
1.7 Appeals A person aggrieved by a decision of the licensing agency may file a request for a fair hearing with the Human Services Board as provided in 3 V.S.A. § 3091.
Section III Variances 3.1. Variances from these regulations may be granted upon a determination by the licensing agency that: (a) Strict compliance would impose a substantial hardship on the licensee or the resident; and(b) The licensee shall otherwise meet the goal of the statutory provision or rule; and(c) A variance shall not result in less protection of the health, safety and welfare of the residents.3.2 A variance shall not be granted from a statute or regulation pertaining to residents' rights.3.3 A home requesting a variance must contact the licensing agency in writing describing how the variance request meets the criteria in 3.1 above.3.4 Variances are subject to review and termination at any time.3.5 A request for a variance from section 5.1.a to retain or admit a resident whose needs exceed that for which the home is licensed to provide must include: (a) A current assessment, with a description of the resident's care needs and how the home shall meet those needs;(b) A written statement from the resident or the resident's legal representative stating the resident's fully informed choice to remain in the home; and that they have been informed the resident shall have to leave if the variance is terminated.(c) A written statement from the resident's physician giving the resident's prognosis and recommending retention at or admission to the home.4.1 Application (a) Any person desiring to operate or establish a Home for the Terminally Ill shall submit two copies of plans and specifications for review, prior to beginning construction or operation, to: Department of Aging and Disabilities
Division of Licensing and Protection
Ladd Hall, 103 South Main Street
Waterbury, Vermont 05671-2306
In addition, such person shall:
(b) Provide written evidence to the licensing agency of compliance with local zoning codes, or a statement signed by the city, town or village clerk that such a code has not been adopted in the community.(c) Submit a copy of the resident assessment form the home will use.(d) Submit a completed license application to the licensing agency on a form supplied by the Department.(e) At least ninety (90) days prior to the projected opening date, request inspections by all entities referenced in subsection 2, a, b, and c below to which plans and specifications were submitted. Modifications shall be made as required by these agencies to achieve full code compliance.(f) Provide the licensing agency with at least three references from unrelated persons able to attest to the applicant's abilities to run a Home for the Terminally Ill and to the applicant's character.4.2 The process for application review is as follows: (a) Licensing and Protection requires the applicant to submit blueprints for new construction or floor plans for existing buildings to the licensing agency for review by an architect and professional engineer.(b) Labor and Industry requires all building plans to be submitted to that department for compliance with Labor and Industry codes and standards.(c) The Agency of Natural Resources requires applications to be reviewed with regard to water and sewage systems. If the applicant requests, the Department of Aging and Disabilities shall convene a meeting of the relevant agencies with the applicant to discuss the review and facilitate a timely completion of the review process.
4.3 Denial of Application (a) An applicant may be denied a license for any one of the following: (1) Conviction of a crime, in Vermont or elsewhere, for conduct which demonstrates unfitness to operate a home;(2) Substantiated complaint of abuse, neglect or exploitation;(3) Conviction, in Vermont or elsewhere, for an offense related to bodily injury, theft or misuse of funds or property;(4) Conduct, in Vermont or elsewhere, inimical to the public health, morals, welfare and safety;(5) Financial incapacity, including capitalization, to provide adequate care and services; or(6) An act or omission which would constitute a violation of any of these regulations.(b) When an applicant is denied for any of the aforementioned reasons, the licensing agency may determine the applicant has overcome the prohibition if presented with evidence of expungement or suitability sufficient to ensure the safety of residents.(c) Failure to provide complete, truthful and accurate information within the required time during the application or renewal process shall be grounds for automatic denial or revocation of a license.4.4 Renewal of Application (a) Application forms shall be mailed to the applicant approximately sixty (60) days before the end of the licensing year. The completed application form must be returned to the licensing agency not less than forty-five (45) days before the expiration date. Upon receipt of a properly completed application, a license shall be renewed assuming all other conditions for licensure are met.(b) Licenses shall be issued for a period of one (1) year, unless the licensing agency determines that a home's lack of compliance with these regulations indicates the home should be given a license for a shorter period of time.4.5 Expiration A license shall expire on the date indicated on the licensure certificate. However, if the licensee has made complete and accurate application to the licensing agency, but the agency has failed to act on the license application, the current license will remain in effect until the agency completes the renewal process.
4.6 Change in Licensed Capacity A home shall not provide care to more residents than the capacity for which it is licensed. Requests for a change in licensed capacity shall be made in writing to the licensing agency. A proper staffing pattern to cover an increase in capacity shall be submitted when requested.
4.7 Other Services (a) A home may provide other related services, such as acting as a senior meals program meal site or adult day care, provided the home: (1) Has adequate space, staff, and equipment to appropriately provide the service;(2) Has fully informed residents on admission, or upon addition of a new service, about the additional services;(3) Ensures residents of the home shall not be inconvenienced by the service; and(4) Has received approval from the licensing agency in advance.(b) The offered service must meet accepted standards of practice and general requirements for that service. For adult day care, the provider must meet the standards for adult day care adopted by the Department of Aging and Disabilities. For meal sites, the provider must meet the standards adopted for the senior meals program through the Department of Aging and Disabilities.(c) If a Home for the Terminally Ill becomes a meal site, the home cannot charge a resident of the home for a meal at the meal site unless that meal is in addition to the meal the home is required to provide to the resident.4.8 Temporary License A temporary license may be issued permitting operation for such period or periods, and subject to such express conditions, as the licensing agency deems proper. Such a license may be issued for a period not to exceed one year and renewal of such a license shall not exceed thirty-six months.
4.9 Change in Status When a change of ownership or location is planned, the licensee or prospective licensee shall file a new application for license at least ninety (90) days prior to the proposed date of the change. The new licensee shall provide each resident with a new written agreement that describes all rates and charges as defined in 5.2.a.
4.10 Separate License A separate license is required for each home that is owned and operated by the same management.
4.11 Transfer Prohibited A license shall be issued only for the person(s) and premises named in the application and is not transferable or assignable.
4.12 License Certificate The home's current license certificate shall be protected and appropriately displayed in such a place and manner as to be readily viewable by persons entering the home. Any conditions which affect the license in any way shall be posted adjacent to the license certificate.
4.13 Responsibility and Authority (a) Each home shall be organized and administered under one authority, which may be an individual, corporation, partnership, association, state, subdivision or agency of the state, or any other entity.(b) Whenever the authority is vested in the governing board of a firm, partnership, corporation, company, association or joint stock association, there shall be appointed a duly authorized qualified manager, however named, who shall be in charge of the daily management and business affairs of the home, who shall be fully authorized and empowered to carry out the provisions of these regulations, and who shall be charged with the responsibility of doing so. The manager of the home shall be present in the home an average of 32 hours per week. The 32 hours may include time providing services, such as transporting, or attendance at educational seminars. Vacations and sick time shall be taken into account for the 32-hour requirement. In the event of extended absences, an interim manager must be appointed.(c) The manager shall not leave the premises without delegating necessary authority to a competent staff person who is at least eighteen (18) years of age. Staff left in charge shall be qualified by experience to carry out the day-to-day responsibilities of the manager, including being sufficiently familiar with the needs of the residents to ensure that their care and personal needs are met in a safe environment. Staff left in charge shall be fully authorized to take necessary action to meet those needs or shall be able to contact the manager immediately if necessary.(d) The qualifications for the manager of the home shall include, at a minimum, one of the following: (1) At least an Associate Degree in the area of human services and two (2) years of relevant administrative experience; or(2) Three (3) years of relevant experience including one year in management, supervisory or administrative capacity; or(3) A current Vermont license as a nurse or nursing home administrator and relevant experience.4.14 Survey/Investigation (a) The licensing agency shall inspect a home prior to issuing a license and may inspect a home any other time it considers an inspection necessary to determine if a home is in compliance with these regulations. (1) Authorized staff of the licensing agency shall have access to the home at all times, with or without notice.(2) If living quarters of a staff person are part of the physical plant of the home, they may be subject to inspection when the inspector has reason to believe the licensed capacity of the home has been exceeded and only for the purpose of determining if such a violation exists. The inspector shall permit the manager to accompany him or her on such an inspection.(3) If an authorized inspector is refused access to a home or the living quarters of the manager, the licensing agency may, pursuant to 18 V.S.A. § 121, seek a search warrant authorizing the inspection of such premises.(4) If, as a result of an investigation or survey, the licensing agency determines that a home is unlicensed and meets the definition of a Home for the Terminally Ill, written notice of the violation shall be prepared pursuant to 33 V.S.A. § 7111 and 4.14 of these regulations.(b) The licensing agency shall investigate whenever it has reason to believe a violation of the law or regulations has occurred. Investigations may be conducted by the licensing agency or its agents and may be conducted at any place or include any person the licensing agency believes possesses information relevant to its regulatory responsibility and authority.(c) After each inspection, survey or investigation, an exit conference shall be held with the manager or designee. The exit conference shall include an oral summary of the licensing agency's findings and if regulatory violations were found, notice that the home must develop and submit an acceptable plan of correction. Residents who wish to participate in the exit conference have the right to do so.(d) A written report shall be submitted to the licensee at the conclusion of an investigation. The report shall contain the results of the investigation, any conclusions reached and any final determinations made by the licensing agency.(e) The licensing agency may, within the limits of the resources available to it, provide technical assistance to the home to enable it to comply with the law and the regulations. The licensing agency shall respond in writing to reasonable written requests for clarification of the regulations.(f) The home shall make written reports resulting from inspections readily available to residents and to the public in a place readily accessible to residents where individuals wishing to examine the results do not have to ask to see them. The home must post a notice of the availability of such written reports. If a copy is requested and the home does not have a copy machine, the home must inform the resident or member of the public that they may request a copy from the licensing agency and provide the address and telephone number of the licensing agency.4.15 Violations: Notice Procedure (a) If, as a result of survey or investigation, the licensing agency finds a violation of a law or regulation, it shall provide a written notice of violation to the home within 10 days. The notice shall include the following: (1) A description of each condition that constitutes violation;(2) Each rule or statutory provision alleged to have been violated;(3) The date by which the home must return a plan of correction for the alleged violations;(4) The date by which each violation must be corrected;(5) Sanctions the licensing agency may impose for failure to correct the violation or failure to provide proof of correction by the date specified;(6) The right to apply for a variance as provided for in Section III of these regulations;(7) The right to an informal review by the licensing agency; and(8) The right to appeal the licensing agency determination of violation, with said appeal being made to the Commissioner within fifteen (15) days of the mailing of the notice of violation.(b) If the licensee fails to return a plan of corrective action or to correct any violation in accordance with the notice of violation, the licensing agency shall provide written notice to the licensee of its intention to impose specific sanctions, and the right of the licensee to appeal.(c) The licensing agency shall mail its decision to the licensee within ten (10) days of the conclusion of the review or, if no review was requested, within twenty-five (25) days of the mailing of the notice of proposed sanctions. The written notice shall include the licensee's right to appeal the decision to the Commissioner.(d) Nothing in these regulations shall preclude the licensing agency from taking immediate enforcement action to eliminate a condition which can reasonably be expected to cause death or serious physical or mental harm to residents or staff. If the licensing agency takes immediate enforcement action, it shall explain the actions and the reasons for it in the notice of violation. At the time immediate enforcement action is proposed, the licensee shall be given an opportunity to request and appeal to the Commissioner. The filing of an appeal will not stay the enforcement action. If immediate enforcement action is taken, the licensee also shall be informed of the right to appeal the Department's action to the Human Services Board.4.16 Enforcement The purpose of enforcement actions is to protect residents. Enforcement actions by the licensing agency against a home may include the following:
(a) Administrative penalties against a home for failure to submit a plan of corrective action or failure to correct a deficiency: (1) Up to $ 5.00 per resident or $ 50.00, whichever is greater, for each day a violation remains uncorrected if the rule or provision violated was adopted primarily for the administrative purposes of the licensing agency;(2) Up to $ 8.00 per resident or $ 80.00, whichever is greater, for each day a violation remains uncorrected if the rule or provision violated was adopted primarily to protect the welfare or the rights of residents;(3) Up to $ 10.00 per resident or $ 100.00, whichever is greater, for each day a violation remains uncorrected if the rule or provision violated was adopted primarily to protect the health or safety of residents.(4) For purposes of imposing administrative penalties under this subsection, a violation shall be deemed to have first occurred as of the date of the notice of violation.(b) Suspension, revocation, modification or refusal to renew a license upon any of the following grounds: (1) Violation by the licensee of any of the provisions of the law or regulations;(2) Conviction of a crime for conduct which demonstrates that the licensee, manager, or principal owner is unfit to operate a home;(3) Conduct inimical to the public health, morals, welfare and safety of the people of the State of Vermont in the maintenance and operation of the premises for which a license is issued;(4) Financial incapacity of the licensee to provide adequate care and services; or(5) Failure to comply with a final decision or action of the licensing agency.(c) Suspension of admissions to a home, or transfer of residents from a home to an alternative placement, for a violation which may directly impair the health, safety or rights of residents, or for operating without a license. Residents subject to transfer shall have the procedural rights provided in Section 6.14.(d) The licensing agency, the attorney general, or a resident may bring an action for injunctive relief against a home in accordance with the Rules of Civil Procedure to enjoin any act or omission which constitutes a violation of the law or regulation.(e) The licensing agency, the attorney general, or a resident may bring an action in accordance with the Rules of Civil Procedure for appointment of a receiver for a home, if there are grounds to support suspension, revocation, modification or refusal to renew the home's license and alternative placements for the residents are not readily available.(f) The licensing agency may enforce a final order by filing a civil action in the superior court in the county in which the home is located, or in Washington Superior Court.(g) The remedies provided for violations of the law or regulations are cumulative.4.17 Identification of Unlicensed Homes With regard to Homes for the Terminally Ill operating without a license, but required by law to be licensed, the following regulations shall apply:
(a) No physician, surgeon, osteopath, chiropractor, physician's assistant (licensed, certified or registered under the provisions of Title 26), resident physician, intern, hospital administrator in any hospital in this state, registered nurse, licensed practical nurse, medical examiner, psychologist, mental health professional, social worker, probation officer, police officer, nursing home administrator or employee, or owner, manager, or employee of a home shall knowingly place, refer or recommend placement of a person to such a home if that home is operating without a license.(b) Any individual listed in 4.17.a who is licensed, certified or employed by the State of Vermont or a municipality and who knows or has reason to believe that a home is operating without the license required under this chapter shall report the home and the address of the home to the licensing agency.(c) Violation of the above sections shall result in a penalty of not more than $ 500 and/or imprisonment not more than six months pursuant to 33 V.S.A. § 7116.(d) The licensing agency shall investigate any report filed by an individual listed above. The licensing agency shall investigate any report unless it reasonably believes that the complaint is without merit.