H. B. 2142
(By Delegates Hatfield and Perdue)
[Introduced January 12, 2011; referred to the
Committee on Health and Human Resources then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto seven new sections, designated §16-5C-21, §16-5C-22, §16-5C-23, §16-5C-24, §16-5C-25, §16-5C-26 and §16-5C-27, all relating to nursing homes; requiring adequate staffing, specifying certain staff to resident ratios; providing enforcement provisions; including civil penalties; requiring a study committee; providing enhanced training requirements for nurse aides; and providing a grant program for projects aimed at reducing employee turnover in nursing homes.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto seven new sections, designated §16-5C-21, §16-5C-22, §16-5C-23, §16-5C-24, §16-5C-25, §16-5C-26 and §16-5C-27, all to read as follows:
ARTICLE 5C. NURSING HOMES.
§16-5C-21. Legislative findings.
The Legislature finds and declares:
(1) There is a large and growing population of senior and disabled persons who require nursing facility care;
(2) Significant staffing resources are necessary to provide quality care to our senior citizens and people with disabilities who reside in nursing homes;
(3) Nursing homes which receive public money should be required to provide at all times staffing resources to meet the minimum levels necessary to provide quality care to each resident; and
(4) Nursing homes which receive public money have a responsibility to report to residents, their families and to the taxpayers of the state, the staffing levels that they provide for the residents in their care.
§16-5C-22. Definitions and scope.
(a) For purposes of sections twenty-one through twenty-seven of this article:
(1) “Licensed personnel” means registered professional nurses and licensed practical nurses.
(2) “Direct caregivers” means certified nurse assistants, licensed practical nurses and registered professional nurses.
(b) The minimum standards and ratios provided in section twenty-three of this article apply to all residents, regardless of their payment source. No waiver of these standards is allowed.
(4) A registered professional nurse as nursing supervisor on duty at all times twenty-four hours per day, seven days per week.
(c) A long-term care facility shall maintain a ratio of licensed personnel to residents of no less than:
(1) One to fifteen during the morning shift;
(2) One to twenty during the afternoon shift; and
(3) One to thirty during the night-time shift.
(d) A long-term facility shall maintain a ratio of direct caregivers to residents of no less than:
(1) One to five during the morning shift;
(2) One to ten during the afternoon shift; and
(3) One to fifteen during the night-time shift.
(e) An employee designated as a member of the nursing staff may not provide services which include food preparation, housekeeping, laundry or maintenance services. A person employed to provide services which include food preparation, housekeeping, laundry or maintenance services may not provide nursing care to residents and may not be counted in determining ratios pursuant to subsection (c) of this section.
(f) The ratios outlined in this section are minimum standards only. Nursing homes shall employ additional staff if needed to ensure quality resident care.
§16-5C-23. Study committee.
(a) Beginning July 1, 2011, and every five years after that, the Joint Committee on Government and Finance shall appoint a committee that shall at a minimum, include consumers or their advocates, or both, workers or their representatives, or both, and providers. The committee shall conduct a study to assess whether the staffing ratios and standards outlined in this article are sufficient to meet residents’ needs. If the staffing ratios and standards are insufficient, the committee shall make recommendations to the Joint Committee on Government and Finance on how the ratios should be adjusted.
(b) The committee shall contract with experts in the field of nurse staffing research and long-term care to recommend a methodology for determining appropriate levels of staffing based on acuity. Nursing homes are required to adjust caregiver to resident ratios upwards, according to this methodology in order to meet the needs of residents with higher acuity levels or those requiring rehabilitation.
§16-5C-24. Disclosure; public right to staffing information.
(a) A nursing home shall post for each wing or floor, or both, of the facility and for each shift the current number of licensed and unlicensed nursing staff directly responsible for resident care and the current ratios of residents to staff, which show separately the number of residents to licensed nursing staff and the number of residents to direct caregivers. This information shall be displayed on a form supplied by the director.
(b) The information shall be posted for the most recently concluded cost reporting period in the form of average daily staffing ratios for that period. This information must be posted in a manner visible and accessible to all residents, their families, caregivers and potential consumers in each facility. A poster provided by the director which will describe the minimum staffing standards and ratios shall be posted in the same vicinity.
§16-5C-25. Enforcement; civil penalties.
(a) The director shall impose a civil monetary penalty upon any facility that fails to meet the staffing requirements of this article. The penalty shall be imposed for each day on which the failure occurs.
(b) The amount of the penalty shall be determined as follows:
(1) Penalties from $3,050 to $10,000 per day shall be imposed for deficiencies in staffing which constitute immediate jeopardy to resident health or safety and for repeat deficiencies when a monetary penalty has been previously imposed.
(2) Penalties from $50 to $3,000 per day shall be imposed for deficiencies in staffing which do not constitute immediate jeopardy to resident health or safety.
(c) In addition to the penalty set forth in subsections (a) and (b) of this section, in any action brought by or on behalf of a resident of the facility, his or her heirs or assigns, for intentional or negligent infliction of harm or lack of adequate care, it shall be established that a failure to meet the staffing requirements of this article was a contributory cause of any injury sustained by the resident.
(d) The director shall impose a civil monetary penalty upon any facility that fails to meet the posting requirements in section twenty-four of this article. The penalty is $1,000 for each day the facility failed to meet fully the posting requirements.
(e) All civil penalties collected by the director shall be deposited in the State Treasury to the credit of the General Fund.
§16-5C-26. Nurse aide training requirements.
(a) The Legislature finds:
(1) Federal regulations established by the Omnibus Budget and Reconciliation Act of 1987 require that certified nurse aides in nursing homes complete a minimum of seventy-five hours of training. Since 1987, the nursing home population has changed dramatically. Residents now have much higher acuity levels than in the past and many more have dementia. As a result, the job responsibilities of certified nurse aides are increasingly complex. Experts agree the training requirements are not sufficient to prepare certified nurse aides to serve this changed population. Many states have instituted training requirements for certified nurse more stringent than the federal seventy-five hour requirement.
(2) In addition to inadequate training for the direct care workforce, astronomically high employee turnover rates jeopardize the quality of care for nursing home residents. According to a recently published survey conducted for the American Health Care Association, the average annualized turnover rate for certified nurse aides in West Virginia nursing homes is nearly seventy-eight percent, higher than the national average of seventy-six percent.
(3) To protect West Virginia residents, the state should increase the amount of training required, improve the training curriculum, and establish a competitive grant program to encourage innovative programs to reduce turnover.
(b) (1) The Secretary of the Department of Health and Human Resources shall increase the amount of training required for certified nurse aides to one hundred sixty hours of training. This amount shall include seventy-five hours of classroom training and eighty-five hours of supervised practical training.
(2) To improve the quality of instruction, approved training for certified nurse aides, the secretary shall require a ratio of no more than twenty-four students to one registered nurse instructor for classroom training, and eight students to one licensed nurse for supervised practical training.
(3) The secretary shall modify curriculum requirements for state approved nurse aide training programs to include more focus on:
(A) Technical skills needed to prevent malnutrition and dehydration;
(B) Social skills necessary to prevent abuse such as conflict resolution;
(C) Stress management and diversity training; and
(D) More thorough training on skills needed to address the unique needs of individuals with dementia.
(4) The secretary shall, in addition to the one hundred sixty hours of training required for certification, require all first time certified nurse aides to undergo a one-week orientation with a mentor. During the orientation, the certified nurse aide may not have unsupervised contact with residents. Certified nurse aides who have been in good standing for a minimum of three years are qualified to be designated as mentors.
§16-5C-27. Grants for employee retention programs.
(a) The secretary shall establish, from funds appropriated for the program or other available funds, a competitive grant program to assist in reducing employee turnover in nursing homes. The program shall, at a minimum provide:
(1) The award of grants to partnerships for two-year periods;
(2) The grants may be used to:
(A) Establish labor management committees;
(B) Establish specialized training programs above and beyond the one hundred and sixty hour requirement;
(C) Provide wage increases for certified nurse aides who serve as mentors;
(D) Establish career ladder programs;
(E) Improve workplace safety; or
(F) To assist in implementing other initiatives to reduce turnover and improve resident care, as approved by the secretary.
(b) (1) The secretary shall appoint a volunteer advisory council to review applications and make recommendations to the secretary as to which should be funded. At a minimum the council shall be composed of individuals appointed to represent:
(A) Nursing facility management;
(B) Consumer interests;
(C) Worker interests; and
(D) Nonprofit or public organizations specializing in workforce development.
(2) A majority of the representatives on the council must be individuals representing nonmanagement interests.
(3) For purposes of this section an individual representing:
(A) Consumer interests may include the ombudsman responsible for the region, a family council representative or other individual approved by the residents as representing their interests; and
(B) Worker interests is the collective bargaining agent or other democratically elected representative of the direct care workforce.
(c) (1) To be eligible to receive a grant, a partnership shall submit an application in the manner prescribed by the secretary.
(2) The application must illustrate that the proposal has been developed in consultation with and approved by nursing facility management, consumer and worker representatives in the facility or facilities it is intended to be implemented.
(3) Applications submitted by unionized nursing facilities must submit a letter of support from the collective bargaining agent for that facility.
(4) Eligible partnerships include nursing facilities, labor organizations or joint efforts of both entities. Partnerships may cover more than one facility if the eligibility requirements are met for each facility.
(5) Each eligible entity that is awarded a grant shall submit a mid-term report after one year of the grant cycle and a final report within thirty days of the completion of the grant cycle to the secretary and the advisory council.
NOTE: The purpose of this bill is to provide for the adequate staffing of nursing homes and training of nursing home staff.
These sections are new; therefore, they have been completely underscored.