§ 8727. Complaints; appeals

(a) Notice. The Department or agency or program funded by the Department shall provide notice:

(1) To an applicant or the applicant's guardian, as applicable, of the rights provided under this chapter, State and federal law, and any other available rights of appeal for violations of any of those rights.

(2) To a person with a developmental disability or the person's guardian, as applicable, of any decision to deny, suspend, reduce, or terminate services, prior to any action by the Department or agency or program funded by the Department and the procedure for appealing the decision.

(b) Appeals. A person with a developmental disability or the person's guardian may appeal a decision of the Department or an agency or program funded by the Department to deny or terminate eligibility for services; to deny, terminate, suspend, or reduce services; or when a request is not acted upon promptly to the Human Services Board. The fair hearing before the Human Services Board shall be conducted pursuant to 3 V.S.A. § 3091(b), (c), (e), (f), (g), and (h)(3) and the following:

(1) The Board shall not reverse or modify a decision of the Department that is consistent with the system of care plan and the rules of the Department, provided that the Board may reverse or modify a decision of the Department that the Board determines is in conflict with State or federal law. The Board shall not reverse or modify a decision of the Department that is determined to be in compliance with applicable law, even though the board may disagree with the results effected by that decision.

(2)(A) The Secretary of Human Services shall review all decisions and orders of the Board issued under this subsection and shall adopt a decision or order of the Board, except that the Secretary may reverse or modify any decision or order of the Board if:

(i) the Board's findings of fact lack support in the record; or

(ii) the decision or order implicates the validity or applicability of any rule or policy of the agency.

(B) The Secretary shall issue a written decision stating the legal, factual or policy basis for reversing or modifying a decision or order of the Board. The Secretary shall approve, modify or reverse a decision or order of the Board within 15 days of the date of the decision or order. If the Secretary fails to issue a written decision within 15 days, the decision and order of the Board shall be deemed to be approved by the Secretary. A decision and order of the Board under this subsection shall become the final and binding decision of the Department upon approval by the Secretary.

(3) The fair hearing officer:

(A) shall assure that a person with a developmental disability shall have access to legal representation; and

(B) may order an independent evaluation at no cost to the person when the fair hearing officer finds that it would aid in the resolution of the issue on appeal.

(c) Internal complaints and resolution procedures. The Commissioner shall:

(1) establish procedures for the investigation and resolution of complaints by recipients or by service providers regarding the availability, quality, and responsiveness of services provided.

(2) establish a procedure for the prompt and impartial resolution of disputes that are not subject to review before the Human Services Board as provided by subsection (b) of this section, such as disputes by recipients regarding the manner, quality, or accessibility of services provided by programs or agencies funded by the Department.

(3) offer conflict resolution services conducted by trained mediators to assist in resolving disputes between recipients and programs and agencies funded by the Department.

(4) offer arbitration to be conducted by a trained independent arbitrator for resolution of disputes that are not resolved by the procedures provided in subdivision (2) or (3) of this subsection, pursuant to which the decision of the arbitrator shall be final and binding, except to the extent that either party has other legal remedies.

(d) Procedure by next friend. The appeal and complaint procedures provided by this section may be initiated by a next friend when a person with a developmental disability is unable to initiate the procedure due to cognitive limitations and the person does not have a guardian, or there is a conflict of interest between the person with a developmental disability and the person's guardian that has resulted in failure to initiate either the appeal or complaint procedure. (Added 1995, No. 174 (Adj. Sess.), § 1.)