Vermont Legislature SmartTranscripts:

[Rep. Theresa Wood (Chair)]: Good morning, everyone. Welcome to the House Human Services Committee meeting. We are going to take up five eighty two, which is an act relating to adult protective services. And we're going to have first a walk through by alleged counsel, Jen Carvey, and then we have a host of witnesses. And

[Jennifer Carbee, Office of Legislative Counsel]: welcome, Jen. Nice to see you. It's nice to be here. Been too.

[Unidentified Committee Member (male)]: Why have you been such a stranger?

[Rep. Theresa Wood (Chair)]: And busy in other places.

[John Gordon, Director of Adult Protective Services (DAIL)]: I

[Unidentified Committee Member (male)]: bet you're still working.

[Jennifer Carbee, Office of Legislative Counsel]: So in fact, I'll be in between here and a couple of other committees this morning, so I may be in and out. All good. So good morning, Jen Harvey from the Office of Legislative Counsel. We think what we are looking for at May is actually a strike all amendment in order to incorporate a couple of additional changes from the Department of Disabilities Aging and Independent Living. I think that the idea was just to start with that version, which is largely the same as introduced. We have members. This is on our web page. This is five eighty two, an act relating to adult protective services, and it has several sections in this same chapter in Title 33. So we start off with the definition section. There's a very long list of definitions in the chapter on protections for vulnerable adults. And this would really overhaul the definition of neglect. I think this definition was added or a version of it just recently in some work that Katie did in this committee. And so this would change from the definition that's in here now to some new language saying that definition means the failure, so that's on page two, the failure of a caregiver, agent, or fiduciary to provide the goods or services that are necessary to maintain the health or safety or both of a vulnerable adult. It continues to specify that neglect does not include self neglect. And then it gives some additional clarifications on what is not considered neglect. So the actions or inactions of a caregiver or fiduciary, which shall not be considered neglect if the caregiver or fiduciary is acting pursuant to the wishes of the vulnerable adult or at the vulnerable adult's representative's direction and authority or in accordance with the terms of a vulnerable adult's advanced directive. So it's not neglect if the caregiver or fiduciary is following the direction of somebody who is authorized to provide direct. Report, which is a term that is used a lot in this chapter for statements from a reporter alleging that a vulnerable adult has been abused, neglect, or exploited. This is just taking out that that necessarily means statements provided to the adult protective services unit. I think Dale will explain to you the rationale for all of these provisions. I'm just telling you what's here. Thank you. A reporter continues to be the person who submitted a report to Adult Protective Services, but also this bill creates an opportunity for someone to submit a report to a licensing entity. You'll see that coming up in next section. Representative under existing law is a court appointed guardian, agent acting under an advanced directive, or agent under a power of attorney, unless otherwise specified in the terms of the power of attorney of attorney. This is taking out the reference to executed pursuant to chapter 18 BSA chapter two thirty one because you'll see in the new language and new definition 35, this just gives a definition for Advance Directive. It has the whole meaning as in 18 BSA 9,701, which has its own whole process for executing an Advance Directive, who can do it, what can be in it, etcetera. We have a definition of fiduciary. So that is an individual or entity who has a legal responsibility to make decisions on behalf of and for the benefit of another individual and to act in good faith and with fairness. And that term includes a trustee, guardian, conservator, executor, agent under a power of attorney or an advance directive or a representative payee. Section two, Amendment 33 VSA Section 6904. This is on the nature and content of a report of suspected abuse or neglect of a vulnerable adult. And so it starts out by giving a carve out from the traditional process. So except as otherwise provided for certain reports of neglect in subsection B, which we'll look at next, the report goes to the Commissioner of Dale or the Commissioner's designee, and it sets out the requirements for what has to go into the report. And then the new subsection B here on page five says, If neglect is alleged to have been perpetrated within a facility that is licensed by the state or a program licensed by the state, or to have been perpetrated by an individual licensed by the state, the report should go to the relevant licensing entity as follows. And if it's neglect within a licensed facility or program, that should go to the applicable state licensing unit in accordance with state and federal licensing rules and regulations. So if it's, for example, licensed by Dale, it would go to Dale. If was licensed by the Department of Health, it would go to the Department of Health, etcetera. If it's neglect by an individual licensed by the Office of Professional Regulation, that should be reported to that office. And neglect by an individual licensed by the Board of Medical Practice should be reported to that board. If a licensing entity identifies neglect allegedly perpetrated within a licensed program, facility or program or by a licensed individual, so if licensing entity then identifies that there is neglect, they should make a report to Adult Protected Services. Section three amends provisions around assessment and investigation of these reports. And under existing law, the investigation provision says within thirty calendar days after the date of notice advising that a report has been substantiated. The perpetrator may apply to the Human Services Board for relief on the grounds that the report is unsubstantiated, requires the Human Services Board to hold a fair hearing. This would add language specifying that that must be within sixty calendar days after the date of the alleged perpetrator's request for a fair hearing. It would strike existing language about priority, putting in a different priority. So priority under this bill would be given to appeals in which there are immediate employment consequences for the person appealing the decision and would require the hearing officer's written findings and recommendation to be issued within fifteen calendar days after the hearing. Finally, the act would take effect on October 1. And that ends the language. Thank you, John.

[Rep. Anne B. Donahue (Ranking Member)]: So page 5B, my bias up front before I even ask the question, I don't like this. First of all, is it possible staying within what the federal for us to have a piece that says that the neglect that's being reported first to these folks shall also be copied to licensing and protection, even if they're not the ones doing the investigation. So they're aware of it in case they end up feeling like I I worry about it not being an independent process. I don't mean this would happen, but just as an example, the medical board feels like we know what doctors are supposed to be doing, and we think this standard is too high for a doctor. So we're going to say it's not neglect. And there's nobody outside the doctors who would say, That's not right. Yeah, I'm not aware of any reason you couldn't have language in here that is instead of sort of

[Jennifer Carbee, Office of Legislative Counsel]: waiting to see if the licensing entity identifies neglect, to have it immediately reported to both places, or to have a no long door approach as well.

[Rep. Anne B. Donahue (Ranking Member)]: Right. I would assume, I mean, we'd assume for fiscal reasons, would not want to say both would be investigating at once. But at least if the report goes to APS so that they're

[Jennifer Carbee, Office of Legislative Counsel]: really I'm not worried about Ishu. With it, Dale can if

[Rep. Anne B. Donahue (Ranking Member)]: he's hearing the question, I can speak to that. That'll be my proposal.

[Unidentified Committee Member (male)]: I would say I was struck by the same thing, that there's some mechanism for dual reporting, maybe clarifying who will be acting to substantiate or not, and the other body can choose to do what they would like after. Related to this, and maybe this is the first time I'm seeing this, so I apologize, but Human Services Board would be the appeal option, even if something is referred to the Board of Medical Practice?

[Jennifer Carbee, Office of Legislative Counsel]: So I think even if something is reported to the practice, board of medical practice may take its own action, but if they would also then be reporting to adult protective services, which then I think would do their typical process. Okay. But I think you may wanna get some more clarity from the department on what they envision. We can make the language a little more specific about what hap who goes where when. I think you're right that that if the Board of Medical Practice were to initiate disciplinary action against one of their licensees as a result of this activity, that that appeal would not go to the human services board. Yep.

[Unidentified Committee Member (male)]: Okay. Yeah. And that

[Jennifer Carbee, Office of Legislative Counsel]: But it's something that comes through flows through Dale Wood.

[Unidentified Committee Member (male)]: So I guess some clarity for that, I guess, just, hopefully. Question back to the top neglect. When something is not neglect, page two. See, you're in line 15. Yeah. So line 17, it's not neglected. It's pursuant to the wishes of the vulnerable adult. To me, what comes to mind is capacity issues of the vulnerable adult. If I'm caring for someone in my home, my wife, and she instructs me to eat something but doesn't necessarily have the capacity. It's like, don't feed me anymore. But she has, I don't know, had some condition that her capacity is in question. Can I really just follow the wishes of someone who doesn't have capacity and not feed them anymore? I you know, I'm not sure I'm being as clear as I would like, but there seems something missing there.

[Rep. Theresa Wood (Chair)]: Yeah. And I think it'll

[Jennifer Carbee, Office of Legislative Counsel]: be important to hear from the departments what their what their thoughts were on putting that language in there. I know even in our you know, except for limited exceptions in the advanced directive context, typically, whatever the individual is expressing as their wishes are to be followed.

[Unidentified Committee Member (male)]: So with Vermont law, in that instance, have me go to a court to try to make a determination as to the person's capacity of whether I can be acting on their behalf, and therefore, we wouldn't necessarily follow that.

[Jennifer Carbee, Office of Legislative Counsel]: I don't know. I think it's a good question for the department. If you invite them to address.

[Rep. Theresa Wood (Chair)]: Any other questions for Jen?

[Jennifer Carbee, Office of Legislative Counsel]: Okay, great. Thank you so much, Jen. We'll listen for them. Thank you. Sorry. Don,

[Rep. Theresa Wood (Chair)]: Joe, Don and Joe. I don't know if there's another chair up there, but Representative Nielsen is not here, so you can use that chair

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: if Thank you would

[Unidentified Committee Member (male)]: you.

[John Gordon, Director of Adult Protective Services (DAIL)]: Do there's more chair?

[Rep. Theresa Wood (Chair)]: Represent Steady. I'll be going down with Thank

[Jennifer Carbee, Office of Legislative Counsel]: you for explaining you know I'm already Yes. Oh, thanks. Welcome.

[Rep. Theresa Wood (Chair)]: Welcome back.

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: Thank you very much. I'm Joan Usbaum. I'm the director of Dale's Division of Licensing and Protection. John Gordon, the director of adult fitness services. And I wanna thank the committee for inviting us to testify in support of H582. So we just went through the particulars and the walkthrough and the exact changes. I wanted to start by talking about broadly the two chief things that these changes accomplish. The first is, which I would say is the main event of all of this, is updating the definition of neglect to bring it in compliance with federal rules. And I think it was mentioned and walked through that the neglect definition that's there was replaced in 2023 when we were last year, which is not accurate that actually the definition was discussed for updating at that time. But it actually tracks back to the original statute, which is now, I think over half a century old. Is that correct? So this does update it for the first time. It's not something that happened in the last pass. The reason for updating it is how neglect is defined nationally in practice and other states pretty much across the board and federally has evolved over time. And the most concrete evolution of that was the new federal rule, which came into effect about a year after the new APS statute was passed in May 2024. So that new rule, it requires that a level of negligence be considered in the definition of neglect and we can get into that, but essentially this new definition that's proposed does meet that. And John and I did confirm that by going down to Washington DC in August 2024, we met with the Department of Health and Human Services who we were able to ask directly, Vermont has these different levels where we specify neglect. Does this meet the national rule? And we got a very resounding confirmation that no, it does not. That neglect shouldn't have levels of consciousness, you should just be looking at the effect. And it's sort of an all or nothing. We get a certain amount of funding from the feds and it funds one FTE essentially, which in our small operations is pretty essential field presence. So if the entire rule is not followed, you lose 100% of that federal funding. And they're going to start looking this fall, 2026 to see that states are in compliance rule.

[Rep. Theresa Wood (Chair)]: I think that this is It's just interesting because I remember vividly how the committee labored over the definition I'm of interested in the same thing when Yes, I mean, don't know many hours we spent on the definition of neglect and then just to see if I'll

[Jennifer Carbee, Office of Legislative Counsel]: strike out was kind of

[Rep. Theresa Wood (Chair)]: like a stab to the heart, to be honest. But I appreciate hearing the rationale and the need. And sometimes simpler is better. I don't know if that will be the case here, but I remember having this very conversation that you just brought up about, well, what if it wasn't intentional? So we tried to thread that needle. And there's all of

[Jennifer Carbee, Office of Legislative Counsel]: our work.

[Rep. Theresa Wood (Chair)]: I know, I'm really lost out.

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: I mean, it's everything, right? So we have this federal rule, we have obviously a very big motivation to be in alignment with it. It's actually required that states are taught even though the money is the only punitive action taken if not. But Dale was also very conscious from our efforts in 2023 that there was contingency, particularly in the healthcare community that was very concerned about going to a more strict liability definition, this federal rule definition. So Dale, and I'll go into this in a little more detail. I'll go into that a little bit about how we arrived at a consensus, but the main takeaway there is we did arrive at a compromise, which is the language that you saw and walked through earlier, and that both meets a lot of the concerns of the stakeholder groups that we met with and bring us in alignment with federal rule. So that's the first thing that this bill accomplishes. The second one, which is not as exciting, but it was a very essential nonetheless. It's a timeframe correction, the appeals timeframe, the way that it was written. And I think it might've just been an oversight that wasn't caught. Is it started a thirty day clock from when the individual recommended for substantiation would have to appeal to the Human Services Board. And it was also written that the Human Services Board had thirty days to issue a decision from the start of when the individual was notified of their substantiation. The hearing. Sorry, thank you. The hearing

[Rep. Theresa Wood (Chair)]: So that's essentially the same time frame?

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: Yes, yes. They could run off the clock to thirty days. Especially because the human services board only meets once a month, if those things don't align, it just wasn't viable. So it makes a correction for that. This probably had one one hundredth of the discussion of the rest of it, because it was not a controversial element. I think the biggest discussion was around the timeframes, but the sixty day timeframe and the fifteen days to issue a decision, those were both agreed upon by everyone in the stakeholder group that convened around this over the last year. So I wanted to just take a moment to talk about that stakeholder process and the compromising. I think it's noteworthy to go into. I've been talking to Dale Commissioner, Doctor. Jill Bone yesterday. She had hoped to be here and really for the sole purpose of expressing her gratitude of that group that came together. I echo that. We started meeting on this and at the start of meeting it seemed like we were in very antithetical places. We had a healthcare community that recognized that changing the definition and requiring reporting of neglect to APS at a different level could have a really chilling effect on an already strained workforce. It could also erode the community of trust that the healthcare community has been working on for years to be able to report these things without punitive measures. So very real concerns there. And then of course, Dale's concerns cheaply always are protecting vulnerable adults and seeing that they're adequately protected and certainly should be protected from caregiver negligence. So starting from that, it was very hard to see where we could arrive at. We met 15 times last calendar year and there were 16 stakeholder groups that were part of that cohort. And in the work that we did, we did arrive at a compromise where what we came up with was an alternative reporting channel. So that reports reporters already had to report to, for example, it was brought up earlier about the licensing and protection survey and certification unit as the licensing entity. They do already through CMS have the strict liability definition of neglect and those cases of neglect need to be reported there. So it was agreed upon that these reports would be shared across entities and allow, give APS the authority to investigate negligence. So it's in its purview, but it doesn't have that chilling effect of having the workforce be required to report directly to APS. Again, yep. Can I ask a question? Sure. So

[Rep. Theresa Wood (Chair)]: I guess I don't understand the chilling effect of you're getting reported to licensing and protection or you're getting reported to APS or you're getting reported to OPR. I mean, it's gonna be chilling all the way around. So I don't really get that. But think it makes some sense to be reporting to entities that already have oversight over whether it's a particular profession or a particular licensing. So guess one of the things that maybe you can add to your comments or remark on is how will you ensure communication happens? So between OPR, for instance, if there's a healthcare professional that comes under a complaint because of neglect to OPR, how will that information be shared so that you can make a decision about whether you're going to investigate it or not?

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: Yes, great question. So I'll start by pointing out that there was a later change implementation from immediate to October 1, and that is to give time to put the MOUs in place and the education efforts in place so that everyone's aware that this is a new statutory requirement with this information sharing. It also will educate the workforce that these reports will be shared amongst these entities and all of the entities that would be part of this report sharing agreement were part of the working group and were aligned with seeing that this happened. So there's the desire. And I can speak myself, the most common one that I envisioned happening would be to the state Dale's Division License and Protection Survey and Certification Unit. And as the DLP Director of both APS and SNC, I would buy that example of setting up and making sure that those reports are shared across the programs. So,

[Rep. Theresa Wood (Chair)]: I'm thinking of the healthcare professional, thinking of a skilled nursing facility, let's say, where that needs to be reported to survey and certification. But if the allegation is that it was a nurse or a doctor or some other healthcare professional is covered by the office of professional regulation, it's still gonna have to report in two places for some of these facilities. Is that right?

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: It can be. So one of the big takeaways as well was there was an agreement that there's no wrong door that, yes, there may be instances where if something falls under both and there's still requirements to both and they would have that. But APS certainly, even though it may not be required to report directly to APS, APS would not accept a report or send it out to be referred back. Does that answer your question? No. No. You're asking

[Rep. Theresa Wood (Chair)]: No. So a skilled nursing facility that is covered under licensing and protection and also has health care professionals covered under OPR. Yes. And let's just say the allegation was against a health care professional covered by OPR, the facility would then be obligated to report in both places. Is that accurate,

[Rep. Anne B. Donahue (Ranking Member)]: I guess, is I'm asking? Yeah.

[John Gordon, Director of Adult Protective Services (DAIL)]: That is accurate because we don't control the reporting requirements of, say, SNC or OPR. We can say, theoretically, if this were to pass, we would say, okay, APS's reporting requirements can go through one of these channels. Yeah. But it wouldn't change the reporting requirements that they have to those entities.

[Rep. Theresa Wood (Chair)]: To those other entities. And so I'm just in an instance, let's just say that the facility reports it to licensing and protection, and they fail to report it to OPR, maybe, I don't know, for whatever reason. I I wouldn't want there to be an issue for the facility if they took what they thought was the right thing, but didn't really realize that they also had to go this other method.

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: So this aside, we already do make those referrals. So that's already happening. Already happens. So leveraging what exists behind.

[Rep. Theresa Wood (Chair)]: Okay, that's helpful. Thank you.

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: So I did provide to Lori in testimony I provided, if you want care to see a breakout of all the stakeholder groups. I'll add a note to this that I really think everyone in these 16 stakeholder entities really didn't participate in almost all of the meetings. Everybody showed up. It was a very active working group. There was talking through a lot of different scenarios and came in and saw a situation. So again, I just want to shed a light on the good faith measure that everybody was there and their patience to really hear and understand the concerns while parties then arrived at this compromise that we landed on. Also included in what I sent to Laurie are some flowcharts. So you can see both the existing path and the proposed paths of reporting. They're pretty basic. In the first you have a bifurcated to APS and then the other required entity and then alternatives where you can go to an entity that then makes the referrals. Course from that, I want to just conclude with my statements. We'll get to some of the questions that came up and walked through, but the four main takeaways are that this change does bring Vermont into compliance with the APS federal rule. It does preserve that by effectively doing that. It preserves the funding for APS that comes from the feds and clarifies that on the workable procedural timeframe for appeals to the Human Services Board. And I think probably the biggest picture is it reflects the consensus solution that this group came together and worked over the last year and arriving at, which we're very happy and grateful for.

[Rep. Theresa Wood (Chair)]: Great. Other questions from the committee?

[Jennifer Carbee, Office of Legislative Counsel]: Yeah, go ahead.

[Unidentified Committee Member (male)]: Just if I can get some additional clarity, I'm still a little confused on the questions asked by Madam Chair. Yes. So if a nurse who's if they're regulated by OPR, if there's some question about neglect, were you saying that the report would come to APS and you would make sure it got to OPR or am I reading it correctly? The statute requires It

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: would go to OPR. The requirement would be for it to go to OPR and OPR would share it with APS. So that would be a statutory required path. Okay. An optional path would be to report directly to APS. APS could take the report and act independently. Or if it went to the survey and certification, the licensing entity say, it would go to both OPR and APS.

[Unidentified Committee Member (male)]: Okay, so are you what's referred to here as a licensing unit?

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: The Division of Licensing and Protection is APS with them that is not.

[Unidentified Committee Member (male)]: Okay, is there any need as we look at the definition, it talks about the report shall be made to the relevant licensing entity as follows. Is that actually a plural entities that it should be simultaneously reported. It's top of page five, lines three and four. Bless you.

[John Gordon, Director of Adult Protective Services (DAIL)]: Sorry.

[Unidentified Committee Member (male)]: I'm a little pissed on this one. Just trying to understand that. Well,

[Rep. Theresa Wood (Chair)]: I mean, they can choose more than one. So relevant doesn't have to mean one, even though it says entity.

[Unidentified Committee Member (male)]: So you said they can choose. So it's

[Rep. Theresa Wood (Chair)]: not I mean, I say choose, it's required. It's Whatever they're required to do. But I I'm saying that so the applicable state that's the that's the example that I was giving. So so a nursing home with with a nurse, let's just say that there's an allegation against, they would report that to the division of licensing and protection, which is the other half of of the witnesses division, and they would then also report it to OPR.

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: So it's okay, I'll pause a moment. I did write down some questions from Watzu, but John, did you wanna add anything or does that cover? I wanted to comment on what the chair and vice chair mentioned before about the work that was done in

[John Gordon, Director of Adult Protective Services (DAIL)]: this committee, because a lot of work was done on this definition, and the definition as it left this committee was actually would have met the requirements of the federal rule, but it was the work in the Senate and the compromise that came out of it to allow the building forward. So I just want to acknowledge that there's a lot of there was a lot of work done and it's not for dogs. Yeah. That was that was the opening compliment that I want to make and nobody probably thought of me.

[Dr. Jill R. Bowen, Commissioner]: I was

[Rep. Theresa Wood (Chair)]: pretty sure when the police downstairs you mentioned.

[Dr. Jill R. Bowen, Commissioner]: Thank you, John.

[Rep. Theresa Wood (Chair)]: Are there any other questions for these witnesses? Do you want to ask the question? I know you're talking about the

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: I can make a couple

[Unidentified Committee Member (male)]: of notes in response to

[Rep. Theresa Wood (Chair)]: Oh, Okay.

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: Sure. So one of the things came up was your question about appeals to Human Services Board and what if there's concurrent if I understood it correctly, concurrently an appeal to the medical examiner's board. The HSB hearing only applies to the registry placement to the adult abuse registry from APS's findings. So any other appeal to medical examiners or other entity would

[Rep. Theresa Wood (Chair)]: have to license or anything like that would not go to the human services.

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: Right, right. Only for that registry placement. The other question was around neglect and capacity. I would say the biggest philosophical change that happened to the APS statute in 2023, definitely the most important, was making it victim centered and putting the victim's rights. Prior to that, there were very few appeal rights. There was no difference given to the direction or wishes of vulnerable adults. So you'll see that language brought in wherever possible to be considered. That said, if capacity is not there, APS won't just defer to the vulnerable adults, which is in that instance. Gale itself does not determine capacity. We rely on medical professionals or some other source to determine that, but those things are balanced, but they're both there for that reason.

[John Gordon, Director of Adult Protective Services (DAIL)]: Just to comment on that, that language that talks about deferring to the rep or the the the alleged victim, that is actually that language was in the previous statutes, that that language is actually brought forward. That's not new. It may look new because it had to be rewritten. Yeah. It's struck down and rewritten, but the content of LA Watch is actually and and since then quite a while.

[Unidentified Committee Member (male)]: It's all new to me. I just wanted to

[John Gordon, Director of Adult Protective Services (DAIL)]: make sure that it was clear that that's actually that's not a new

[Rep. Theresa Wood (Chair)]: It's not a new concept. Yes. Thank you, John.

[Unidentified Committee Member (male)]: I'm just thinking through the example I gave if if I'm caring for my wife and she something happened to their capacity. She's know, says, well, don't feed me anymore. And I if I have a question, I guess I would have to go to proper channels court and whatnot to contest capacity if I think that's if that's what's causing her statements to me about whether she wants to be fed in my example.

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: Right. APS would not act contrary to that without some other entity, medically diagnosing Elena, correct?

[John Gordon, Director of Adult Protective Services (DAIL)]: In order to provide care against a person's wishes, that's a pretty high bar. So this is really does APS, what do we take the position on is maltreatment. It's a little bit, you know, if a person is trying to do the best they can provide care and the person that's saying, no, I don't want it, and they really feel that they need it, If they were to give that care, that would be provided care consent, against the person's wishes. So that's a whole, there's almost, you're almost in a position where you could be going the other way. So the capacity is very much like, it's a very thorny issue, and most of the cases that get very thorny have a capacity element that we're trying to suss out, and there's a lot of those cases that end up in front of the courts to help suss that out.

[Rep. Theresa Wood (Chair)]: Thank you both. Commissioner Bowen, you were referenced here just a few minutes ago.

[Rep. Anne B. Donahue (Ranking Member)]: And then you appeared.

[Rep. Theresa Wood (Chair)]: And then you appeared. I know it's kind of like Nolan does for us, you know, but you're welcome to make a few comments if you would like. Yeah, well, you may have

[Dr. Jill R. Bowen, Commissioner]: made those comments, but I really just want to shout out the sales division, which APS, the Belt and Protective Services of the Department, and the really extraordinary work that went on this past year with 16 different stakeholder interested party groups across the board, and they are listed in the testimony, but it is advocacy groups, medical groups, and legal groups, really everybody you can imagine who would have a concern or an interest in this work, and we really reset the of the playing field on this by acknowledging that all parties are of critical importance in this work. That's the vulnerable individual whose safety is paramount, and the caregiver or workforce community whose well-being is critically important, and the 15 meetings that occurred were very collaborative, we had facilitation of most of them, and really worked through almost in a way of creating a model of how to come to consensus and stay in compliance with Zon And just a shout out to the two down menu, up here at the front, and to all of the members of this collaborative work group. See how I have on the screen, that really came together to bring this to a very different place here.

[Rep. Theresa Wood (Chair)]: Thank you. Thank you, and thank you for bringing the work forward. I want to just ask one thing that isn't maybe quite obvious from the examples that you gave in your testimony and the sort of little diagrams that you included, because it all references facilities. And a lot of these complaints actually don't come from facilities.

[Dr. Jill R. Bowen, Commissioner]: I guess so I

[Rep. Theresa Wood (Chair)]: the survey and certification part really would be not applicable. So it would then just go to APS. Correct. Okay. Just wanna make sure. Because you didn't give any example for that.

[Joan Usbaum, Director, Division of Licensing and Protection (DAIL)]: Right. Right. It's not discussed.

[Dr. Jill R. Bowen, Commissioner]: I think it's because that's not really a change. Right.

[Rep. Theresa Wood (Chair)]: Yeah. Yeah. I just wanted to make sure that committee understands that. So any other questions for these witnesses? It's nice to see you both here again. Thank And thank you for your work on this.

[John Gordon, Director of Adult Protective Services (DAIL)]: Thank you very much.

[Rep. Theresa Wood (Chair)]: Okay. Helen.

[Helen Laban, Executive Director, Vermont Health Care Association]: Yes. Thank you. So I morning. I'm having some Internet connectivity issues. So with your permission, would I'm probably gonna keep my video off just to make sure that I do not freeze on the screen. Okay.

[Rep. Theresa Wood (Chair)]: Well, you have a lovely picture.

[Helen Laban, Executive Director, Vermont Health Care Association]: Yes. Forgive the impromptu advertisement for StoryWorks headshots. So my name is Helen Laban. I'm the executive director of the Vermont Health Care Association. We represent nursing homes, assisted living residences, and residential care homes in Vermont. And I'm speaking sort of for the group of different providers who were part of this, as has been described, fairly intensive process of coming into compliance with federal changes around that neglect definition. A lot of what I could say about the process, I think, has already been said, many meetings, many stakeholders, and also a shared acknowledgment that in spite of the work and thought that Vermont had put into our definition, it was no longer in compliance with the federal requirements, and we did need to change to this new definition. I think that one way and this is I I will also add a very although it's a somewhat straightforward change in the definition because it was different from the sort of the conceptual framework that Vermont had been working from. It caused a lot of legal review, reviewing regulations, reviewing policies. It got pretty complicated pretty quickly. A way to, I think, simplify the change as far as the statute is concerned and sort of as the provider groups looked at this was to think about the class of neglect concerns that are newly brought into investigation for this change. So we were looking primarily at those instances where the neglect had been unintentional, perhaps the individual had no ability to have done otherwise, basic errors due to the imperfection of the world. And additionally, on top of that, with the looked at the licensed facilities and licensed professions, remember, we are under an obligation to report all errors where something has gone wrong in some significant way. So we aren't necessarily looking at an outside allegation of neglect, but rather a self reported incident from, in my case, a facility. I'll speak primarily to my members who are licensed facilities. And when we look at those instances, we have lots of examples of what might happen. Sort of a common one would be, say, a nursing home, there's a transfer back and forth from hospital, something goes wrong with the medication reconciliation, the receiving nurse doesn't receive the full medication list and a medication is missed. So in that instance, something has gone wrong and should be investigated and we should figure out what went wrong, but it needs to be looked at in a sort of holistic system based way to understand where the errors occurred. It wasn't necessarily the fault of that individual nurse who received an incorrect list and therefore missed the medication. And we can think of other examples. There's a weather event, there's a call out, a nursing home is understaffed, and LNA does not respond promptly to a call light because of the understaffing. Is that that individual LNA's fault or was there something else that went wrong with the staffing? Similarly for onboarding and training, we can think of many different examples where the error is more organizational than an individual's error. And and when we look at those instances, again, something went wrong, should be investigated, should be corrected. But the investigating entity that's set up to do that sort of evaluation would be, in our case, survey and certification, not necessarily APS, which is set up more for an individual fault situation. And so we wanted to ensure that those reviews went to the regulatory entity that had the infrastructure in place to deal with organizational errors or systemic errors, both out of fairness for the individual, but also simply from the desire to make the appropriate correction. And so hence you see the referral pathways that try to ensure that the entity that is best set up with those situations is the one that does the initial investigation. And then the other element behind this is also looking at the timeliness of those investigations. Because remember, if an individual has been reported and is under investigation, they're not working during that time. And so that is both a problem for staffing and also for that individual who is not working for what could be an extended period of time. So we had a desire both to have the appropriate investigations and also to have timely investigations for the best interests of all involved. And you see there the the language that we agreed accomplished that. Additionally, to to the questions, and I think this has already been addressed of, you know, who sees what reports? Does DLP have the ability to review all reports and ensure that everything is happening as it should be. No wrong door was brought up many times, and this is where the lawyers came in. So in full honesty, I I deferred I deferred to the legal review of how those pathways were established and and trusted the review that that is in fact accomplished through this new language. And then additionally, we had conversations about the need to do lots of education for providers and for individuals on this change, on this complicated change, and hence setting a deadline that would accommodate that and also meet the federal requirements. So we feel good that it was a complicated and involved process, but that we reached a place that everybody could work with to the best interests of everyone involved in this process.

[Rep. Theresa Wood (Chair)]: Thank you. Thank you, Helen. Are there questions for this witness? It looks like you're clear, Helen. Great.

[Tylee (last name unknown), advocate]: Thank you so

[Rep. Theresa Wood (Chair)]: Thank you very much.

[Tylee (last name unknown), advocate]: And I have just short comments on this. We think that this change is important and beneficial for Vermonters. It's really difficult to prove intent in situations like this. So just to say if the needed services are not being provided, that that's a problem. We think that's an important change to protect Vermonters. Our as many of you flagged, we do think the language around reporting is confusing, but the overall change is something that

[Rep. Theresa Wood (Chair)]: we strongly support. Thank you. Questions for this witness? Okay. So far, we're holding true to the Yeah. We're holding true to the this looks like people are in agreement. Yeah.

[Tylee (last name unknown), advocate]: If you'd like, I could respond to the concerns about about competency. And Oh, sure. Sure. We we did we had more concerns based

[Unidentified Committee Member (male)]: on

[Tylee (last name unknown), advocate]: the complaints that we get about people being forced to get care that they are saying they don't want and that not being respected because someone says, well, I could be accused of neglect if I don't make you do this, don't make you have this take this drug or something. So that's a much bigger concern than we have. There's a different question of what a worker can provide to someone who is saying they don't want it. But this is this statute is about what a worker can be basically punished for not providing. And, and I don't have concerns about the language as far as that if if someone is saying, I don't want this, and a worker doesn't provide it, that the worker wouldn't be found liable, basically.

[Dr. Jill R. Bowen, Commissioner]: Does that help make sense?

[Unidentified Committee Member (male)]: Yeah.

[Jennifer Carbee, Office of Legislative Counsel]: Okay. Thank you.

[Rep. Theresa Wood (Chair)]: Thank you very much, Tylee. Appreciate Okay. So it appears as though nobody asked any additional questions here.

[Rep. Anne B. Donahue (Ranking Member)]: Other than when you were out. When I

[Rep. Theresa Wood (Chair)]: was out?

[Dr. Jill R. Bowen, Commissioner]: You wanna Yeah. You're concern was

[Jennifer Carbee, Office of Legislative Counsel]: Yeah.

[Rep. Anne B. Donahue (Ranking Member)]: Because there was yeah. Okay. So it was purely the issue of the reporting, way that if it's the Professional Armington Medical Society or if it's, you know, it goes to them and that potentially would bypass an independent oversight component. And the suggestion was to simply that it be copied to the Department of Licensing and Protection. Not that they do a double investigation and so forth, it's simply they receive a copy so they're aware of the fact that that could have been taken. So that was kind of the issue that

[Rep. Theresa Wood (Chair)]: I was following up on, not knowing that

[Dr. Jill R. Bowen, Commissioner]: that was a And

[Rep. Theresa Wood (Chair)]: what I heard the division say is that the reason that they changed the effective date to October 1 is that they would be implementing MOUs between the organizations. Did I hear that correctly? Yeah.

[Rep. Anne B. Donahue (Ranking Member)]: Picking up on how that might I think that

[Rep. Theresa Wood (Chair)]: that would address that issue. Yeah, yeah. And I think it's really important to have those because I think The

[Rep. Anne B. Donahue (Ranking Member)]: only thing is, you know, we've had this in other areas. I mean MOUs can totally address a problem, but they're not required to be maintained. Things can change down the line and then it would force, okay, then it has to come back to the legislation to make an amendment if it's not happening. And if it's just in there then, or if it says there shall be MOUs, then we know it's in there and we don't have to worry about some future time.

[Rep. Theresa Wood (Chair)]: So are you suggesting at the top of page five that if neglect is alleged to have been perpetrated within a facility, blah, blah, blah, the report should be made to the relevant licensing entity as follows. And maybe the addition of a

[Jennifer Carbee, Office of Legislative Counsel]: Can I invite myself?

[Rep. Theresa Wood (Chair)]: No, it says number two. Number two says it shall be make a report to adult protective services. Yes. It makes a It's a good

[Tylee (last name unknown), advocate]: so No.

[Jennifer Carbee, Office of Legislative Counsel]: No. No. That's Yeah. Legislative council. So I so my suggestion that I think maybe would would address the concern is if we split number two into two pieces, and we said hold on. Put the line up again. I'm gonna try one. Yes. If we were to say something like, if a licensing entity receives report of neglect allegedly perpetrated in the facility or program, blah blah blah, the licensing entity shall inform adult protective services, and then that would be like a. And then b, if the licensing entity identifies neglect, then they would make a report to adult protective. Sounds good. Would that seem like it? Let me see if that

[Rep. Theresa Wood (Chair)]: works for Does that sound alright to people in the room?

[Jennifer Carbee, Office of Legislative Counsel]: Try John's going like, I'm not sure.

[Rep. Theresa Wood (Chair)]: It just essentially says that you get a copy.

[John Gordon, Director of Adult Protective Services (DAIL)]: I mean, that's The only question I would have is do I have a requirement with that information?

[Dr. Jill R. Bowen, Commissioner]: No, it's just awareness.

[Rep. Anne B. Donahue (Ranking Member)]: It's just awareness, right, I don't think that language would in any way, because right above it it says who actually investigates, so.

[Rep. Theresa Wood (Chair)]: Do do you see an issue with that, Jen? Does that create a duty on the part of APS once they've received a copy of something?

[Jennifer Carbee, Office of Legislative Counsel]: I mean, I think I think it comes down to a little bit of a distinction between a report and a sort of, you know Notification. Yeah. So so I can see where the question is coming up, looking at just the the regular language about reports to be made, and then it kind of kick starts the process. So I think we could say something like shall inform, but APS doesn't have to take any action unless there's a follow-up saying we have found.

[Dr. Jill R. Bowen, Commissioner]: Unless that part two

[Jennifer Carbee, Office of Legislative Counsel]: Yeah. I mean, I guess I would maybe want some clarification from APS about when they when they would want to act if they're made aware of something. Because it seems like with this new language, there's sort of the regular report to APS, and then there's a separate report to the licensing entity. And aside from being made aware that the licensing entity has received something, is there ever a point before the licensing entity does whatever it does with that information that APS wants to be doing its own investigations.

[Rep. Anne B. Donahue (Ranking Member)]: So I wonder if if it just If would just say they can coordinate as chooses shall provide advice or consultation. I mean, if APS chooses because Yeah.

[Rep. Theresa Wood (Chair)]: Don't I I feel like you're yeah. I don't think we really need to be that. I I think that Helen not Helen. Jen, if we can maybe concentrate on that notice part, essentially notifying APS that they've received and are acting upon a complaint, that's an FYI from my perspective. So I think along the lines that you were talking about.

[Rep. Anne B. Donahue (Ranking Member)]: I'm fine with that.

[Rep. Theresa Wood (Chair)]: Okay.

[Rep. Anne B. Donahue (Ranking Member)]: The MOUs will take care of

[Dr. Jill R. Bowen, Commissioner]: the details of how all that interacts. Let's just make sure We just have that. Yeah. Yeah.

[Rep. Theresa Wood (Chair)]: Okay. Anything else? That was markup, just so you know. This bill is going move quickly. It's less than six workdays to cross over. So Jen, is there any chance because we have a couple of members who are not gonna be here tomorrow. Is there any chance we could have this back today? Yes. Awesome. Okay. Anybody have any other questions? Committee members. Okay. Thank you very much. Thanks, Jen. Appreciate that. And just let us know when you have it back, and we're going to squeeze in the vote today. I think that's the first time since I've been here that we've had a review of the bill and testimony, markup and vote. Okay. Thank you all. Take care. Okay. So we have a little bit of time, but let's take a brief break till 10:15. And then we'll be back online. And we're going to take up H-six 57 this afternoon, but I'd like to have some committee discussion about H-six 57. And Anne's got a bit of an update about the sections that she's been working on. So we'll do that after we have a brief