§ 9709. Obligations of health care providers, health care facilities, residential care facilities, and health insurers regarding protocols and nondiscrimination

(a) As used in this section, “DNR/COLST” shall mean do-not-resuscitate orders (DNR) and clinician orders for life sustaining treatment (COLST) as defined in section 9701 of this title.

(b) Every health care provider, health care facility, and residential care facility shall develop protocols:

(1) to ensure that a principal‘s advance directive, including any amendment, suspension, or revocation thereof, and DNR/COLST order, if any, are promptly available when services are to be provided, including that the existence of the advance directive, amendment, suspension, revocation, or DNR/COLST order is prominently noted on any file jacket or folder, and that a note is entered into any electronic database of the provider or facility;

(2) for maintaining advance directives received from individuals who anticipate future care but are not yet patients of that provider or facility;

(3) to ensure that the provider or facility checks the registry at the time any individual without capacity is admitted or provided services to determine whether the individual has an advance directive;

(4)(A) to ensure that, unless otherwise specified in an advance directive or guardianship order, an agent or guardian shall have the same rights a principal with capacity would have to:

(i) request, review, receive, and copy any oral or written information regarding the principal’s physical or mental health, including medical and hospital records;

(ii) participate in any meetings, discussions, or conferences concerning health care decisions related to the principal;

(iii) consent to the disclosure of health care information; and

(iv) file a complaint on behalf of the principal regarding a health care provider, health care facility, or residential care facility;

(B) the exercise of rights under this subdivision shall not be construed to waive any privilege provided by law;

(5) to ensure that the provider or facility complies with its obligations under the Patient Self-Determination Act, 42 U.S.C. § 1395cc(a), and the regulations issued thereunder.

(c) Every health care facility and residential care facility shall develop written protocols to ensure that:

(1) A patient is asked if the patient has an advance directive:

(A) prior to an anticipated admission, when possible;

(B) if not possible prior to admission, as soon thereafter as possible; and

(C) periodically while at the facility.

(2)(A) A patient’s advance directive is reviewed to determine whether the facility would decline to follow any of the advance directive’s instructions pursuant to subsection 9707(b) of this title, in which case the facility shall comply with the requirements of subsection 9707(c) or subdivision 9707(b)(3) of this title.

(B) The review of a patient’s advance directive required by this subdivision shall occur:

(i) prior to an anticipated admission, when possible;

(ii) if not possible prior to an anticipated admission, as soon thereafter as possible; and

(iii) when a patient executes an advance directive or an amendment to an advance directive.

(3) A patient with an advance directive is encouraged and helped to submit the advance directive or a notice of the advance directive to the registry.

(4) DNR/COLST orders are issued, revoked, and handled pursuant to the same process and standards that are used for each patient receiving health care.

(5) Upon transfer or discharge to another facility, a copy of any advance directive, DNR order, or COLST order shall be transmitted with the principal or patient. If the transfer is to a health care facility or residential care facility, any advance directive, DNR order, or COLST order shall be promptly transmitted to the subsequent facility, unless the sending facility has confirmed that the receiving facility has a copy of the advance directive, DNR order, or COLST order.

(6) For a patient for whom DNR/COLST orders are documented in a facility-specific manner, any DNR/COLST orders to be continued upon discharge, during transport, or in another setting shall be documented on the Vermont DNR/COLST form issued pursuant to subsection 9708(b) of this title or on the form as prescribed by the patient’s state of residence.

(d)(1) Each nursing home and residential care facility that chooses to use volunteers to explain to residents the nature and effect of an advance directive as required by subsection 9703(d) of this title shall ensure that the volunteers have received appropriate training regarding the explanation of advance directives.

(2) Every hospital shall designate an adequate number of individuals to explain the nature and effect of an advance directive to patients as required by subsection 9703(e) of this title.

(e) No health care provider, health care facility, residential care facility, health insurer as defined in section 9402 of this title, insurer issuing disability insurance, or self-insured employee welfare benefit plan shall charge an individual a different rate or require any individual to execute an advance directive or to obtain a DNR/COLST order or DNR identification as a condition of admission to a facility or as a condition of being insured for or receiving health care or residential care. No health care shall be refused except as provided in this subchapter because an individual is known to have executed an advance directive. (Added 2005, No. 55, § 1, eff. Sept. 1, 2005; amended 2011, No. 60, § 12, eff. June 1, 2011; 2017, No. 121 (Adj. Sess.), § 4, eff. May 3, 2018; 2023, No. 6, § 245, eff. July 1, 2023.)