ENROLLED
H. B. 4102
(By Delegates Compton, Hutchins, Caputo,
Fleischauer, Manuel, Rowe and Leach)
[Passed March 12, 1998; in effect ninety days from passage.]
AN ACT to amend and reenact sections three and seven, article
five-l, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all
relating to long-term care ombudsmen; regional long-term
care ombudsmen; qualifications; duties; training;
certification; definitions; defining a pecuniary interest in
the provision of long-term care; modifying the prohibition
against certain prior employment in the field of long-term
care of regional long-term care ombudsmen; and expanding
the qualifications for regional long-term care ombudsmen.
Be it enacted by the Legislature of West Virginia:
That sections three and seven, article five-l, chapter
sixteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 5L. LONG-TERM CARE OMBUDSMAN PROGRAM.
§16-5L-3. Definitions.
As used in this article, unless a different meaning appears from the context:
(a) "Government agency" means any department, division,
office, bureau, board, commission, council, authority, or any
other agency or instrumentality created by the state or political
subdivision thereof or to which the state is a party or by any
county or municipality which is responsible for the regulation,
visitation, inspection, or supervision of long-term care
facilities or which provides services to residents or long-term
care facilities;
(b) "Long-term care facility" means any nursing home,
personal care home, or residential board and care home as defined
in section two, article five-c of this chapter; nursing homes
operated by the federal government or the state government;
extended care facilities operated in connection with hospitals;
and any similar institution, residence or place, or any part or
unit thereof, however named, in this state which is advertised,
offered, maintained or operated by the ownership or management
for consideration, for the express and implied purpose of
providing accommodations and care or personal assistance to one
or more persons who are ill or otherwise incapacitated or are
dependent upon the services of others by reasons of physical or
mental impairment and who are not related within the degree of
consanguinity of second cousin to the owner or manager of the
institution, residence or place;
(c) "Long-term care ombudsman volunteer" or "ombudsman
volunteer" means any uncompensated individual who performs the
duties enumerated under section eight of this article:
Provided,
That the individual has received appropriate certification as set
forth in section nine of this article;
(d) "Pecuniary interest" means holding a financial interest
in or deriving financial benefit from the provision of long-term
care, but does not include employment in the long-term care
industry or in the home health care industry;
(e) "Personal assistance" means personal services,
including, but not limited to, the following: Help in walking,
bathing, dressing, feeding or getting in or out of bed, or
supervision required because of the age or mental impairment of
the resident;
(f) "Regional long-term care ombudsman" means any paid staff
of a designated regional long-term care ombudsman program who has
obtained appropriate certification from the state commission on
aging and meets the qualifications set forth in section seven of
this article;
(g) "Resident" means an individual living in a nursing home,
personal care home, residential board and care home, or any long- term care facility as defined in subsection (b) of this section,
or who has lived in such a setting, or who has made application
to live in such a setting: Provided,
That nothing in this
article may be construed to give a long-term care ombudsman the
right to obtain the waiting list of a long-term care facility;
(h) "State long-term care ombudsman" means an individual who
meets the qualifications of section five of this article and who
is employed by the state commission on aging to implement the
state long-term care ombudsman program as set forth in this article; and
(i) "Guardian" means a person lawfully invested with the
power and charged with the duty of taking care of another person
and managing the property and rights of another person who for
some peculiarity of status or defect of age, understanding or
self control is considered incapable of administering his or her
own affairs, to include committees or other references under the
code.
§16-5L-7. Regional long-term care ombudsmen; qualifications;
duties; training; certification.
(a) Each regional long-term care ombudsman program shall
employ one or more regional long-term care ombudsmen to effect
the purposes of this article. The regional long-term care
ombudsman shall have either: (1) At least a four-year degree in
gerontology, social work, health, or a related field and
demonstrated experience in one of the following areas: (A) The
field of aging; (B) health care or social service programs; (C)
community programs; or (D) long-term care issues; or (2) at least
a four-year degree in any field and at least three years of
experience in gerontology, social work, health or a related
field.
Persons employed in a designated regional long-term care
ombudsman program on the date of enactment of this article may be
given a waiver from these requirements provided that within one
year from the date of enactment of this article they enter into
a program leading to a degree in gerontology, social work, health
or a related field or complete fifty hours of continuing
education units in gerontology, social work, health or a related field every two calendar year periods. The regional long-term
care ombudsman shall participate in ongoing training programs
related to his or her duties or responsibilities. The regional
long-term care ombudsman may not have been employed within the
past two years prior to the date of his or her employment under
this section by any association of long-term care facilities. If
a regional long-term care ombudsman has been employed within the
past two years prior to the date of his or her employment under
this section by a long-term care facility, or by any organization
or corporation that directly or indirectly regulates, owns or
operates a long-term care facility, that ombudsman may not act
with the authority of a regional long-term care ombudsman in the
facility of prior employment or in any other facility regulated,
owned or operated by the same ownership as the facility of prior
employment.
(b) Neither the regional long-term care ombudsman nor any
member of his or her immediate family may have, or have had
within the two years preceding his or her employment under this
section, any pecuniary interest in the provision of long-term
care. For the purposes of this section, the term "immediate
family" shall mean the spouse, children, natural mother, natural
father, natural brothers or natural sisters of the regional
long-term care ombudsman.
(c) The duties of the regional long-term care ombudsman
shall include, but are not limited to, the following:
(1) Regularly monitoring long-term care facilities and
investigating complaints filed on behalf of a resident, or filed on the regional long-term care ombudsman's own initiative,
relating to the health, safety, welfare and rights of such
residents, in accordance with complaint investigation procedures
developed by the state long-term ombudsman care program:
Provided,
That nothing in this section shall be construed as to
grant a regional long-term care ombudsman the right of entry to
a long-term care facility's drug rooms or to treatment rooms
occupied by a resident unless prior consent has been obtained
from the resident;
(2) Monitoring the development and implementation of
federal, state and local laws, regulations and policies with
respect to long-term care facilities;
(3) Training certified volunteers in accordance with the
training and certification program developed by the state
long-term care ombudsman program;
(4) Encouraging, cooperating with, and assisting the
development and operation of referral services which can provide
current, valid and reliable information on long-term care
facilities and alternatives to institutionalization to persons in
need of these services and the general public;
(5) Submitting reports as required by the state long-term
care ombudsman program; and
(6) Other duties as mandated by the Older Americans Act of
1965, as amended.
(d) The state long-term care ombudsman shall develop and
implement procedures for training and certification of regional
long-term care ombudsmen. Regional long-term care ombudsmen who satisfactorily complete the training requirements shall be
certified by the state commission on aging and shall be given
identification cards which shall be presented to employees of a
long-term care facility upon request. No regional long-term care
ombudsman may investigate any complaint filed with the West
Virginia long-term care ombudsman program unless such person has
been certified by the state commission on aging. Consistent with
the provisions of this article and any rules and regulations
promulgated pursuant to section twenty-one, certified regional
long-term ombudsmen shall be representatives of the state
long-term care ombudsman program.