H. B. 2401


(By Delegates Compton, Kiss, Petersen,


Gallagher, Douglas and Leach)

[Introduced February 8, 1995; referred to the

Committee on Health and Human Resources then Finance.]




A BILL to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article five-m, relating to the home care service licensure act; short title; definitions; licensure; denial, suspension or revocation of licenses; violations and criminal penalties; provision for injunction; establishing rules.

Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article five-m, to read as follows:
ARTICLE 5M. HOME CARE SERVICES LICENSURE ACT.

§16-5M-1. Purpose and short title.

This article shall be known as the "Home Care Services Licensure Act." The purpose of the act is to promote the health, safety and adequate care of patients or clients of home care agencies. It is also the purpose of the act to assure quality of home care through the establishment, review and enforcement of rules, the setting of minimum standards in the establishment, maintenance and operation of home care services and agencies and periodic inspection of such agencies. It is also the purpose of this act to protect the rights of patients and clients to participate in their home care decisions, including, but not limited to: (1) Consumer choice and self-determination; (2) rights of privacy and confidentiality; and (3) the right to be treated with dignity and respect.
§16-5M-2. Definitions.
(a) "Agency" means an administrative unit that is responsible financially and legally.
(b) "Branch office" means a location or site from which a home care agency provides services within a portion of the total geographic area served by the parent agency. The term includes an office that is part of a home care agency that is sufficiently accessible to share administrations, supervision and services in a manner that renders it unnecessary for the branch independently to meet the requirements of this article as a home care agency.
(c) "Bylaws" means a set of rules adopted by the home care agency for governing the agency's operation.
(d) "Department" means the West Virginia department of health and human resources.
(e) "Clinical note" means a dated written notation by a member of the home care service team of a single contact with a patient or client which is a summary of facts about care during a given period of time which contains a description of signs and symptoms, service, treatment or medication given, the patient's or client's reaction and changes in physical or emotional condition.
(f) "Home care agency" means a Class I or Class II home care agency.
(g) "Class I home care agency" means an organization or part thereof, staffed and equipped to provide private duty home care or skilled nursing and at least one of the following services: Physical therapy, occupational therapy, speech pathology, medical, social or home health aide services intended for the aged, disabled, ill or infirm on a part-time or intermittent basis in their places of residence which is exclusive of services provided by licensed hospices.
(h) "Class II home care agency" means any organization or part thereof exclusive of Class I home care agencies and hospice agencies, which supplies, arranges or refers personnel to provide home care services for which that organization receives a fee, consideration or compensation of any kind. The term includes, but is not limited to: (1) Homemaker or home care aide providers; (2) companion care providers; (3) registry services; (4) intravenous therapy providers; (5) in-home dialysis providers; (6) durable medical equipment providers who offer an ongoing complementary or billable service in conjunction with providing any equipment; and (7) government departments or contracted agencies, or both, such as, but not limited to, area agencies on aging, senior centers, mental health centers, case management agencies which provide direct home care or habilitative or rehabilitative services. The term does not include: (1) Hospice providers, who are already licensed in West Virginia; (2) volunteer providers or individuals who provide a home care service without a contract or other business relationship with a Class I or Class II home care agency; or (3) services which are provided under a written contract with a licensed home care agency.
(i) "Home care aide" means an individual who has completed a program of training consistent with standards established by the department, and who has demonstrated competence in each area of responsibility, or is a certified nursing assistant who assists patients or clients with home management and environmental services such as housekeeping and homemaker services, and assists patients or clients with nonmedically directed personal care, including, but not limited to, assistance with self-administered medications, feeding, assistance with ambulation, bathing, hair care and grooming, dressing, toileting, transfer activities, observation of medications, special diets, respite and companion care, activities of daily living, instrumental activities of daily living and appropriate patient or client teaching consistent with training. Home care aides shall for all purposes be considered employees of the home care agency and not independent contractors.
(j) "Home health aide" means an individual who has met the requirements of the federal health care financing administration's medicare program Home Health Agencies: Condition of Participation (42 CFR part 484) Personnel Qualifications "Home Health Aides" (42 CRF, part 484.4) and who assists the patient or client with home management activities and medically directed personal care.
(k) "Home management and medically directed personal care" means all duties of the home care aide in addition to those delineated under a medically directed plan of care, including: Nonsterile wound care; assistance with self-administered medications; assistance with prescribed exercises; rehabilitation activities; simple procedures; help with assisting devises; and appropriate patient or client instruction within a scope of a home health aide's training. Home health aides shall be competent in the following areas:
(1) Communication skills;
(2) Observation, reporting and documentation of patient or client status and the care of services furnished;
(3) Reading and recording temperature, pulse and respiration;
(4) Basic infection control, including universal precautions;
(5) Basic elements of body functioning and changes in body function that must be reported to an aide's supervisor;
(6) Maintenance of a clean, safe and healthy environment;
(7) Recognizing emergencies and knowledge of emergency procedures;
(8) The physical, emotional and developmental needs of and ways to work with the populations served by the home health agency, including the need to respect the patient, his or her privacy and his or her property;
(9) Appropriate and safe techniques in personal hygiene and grooming that include:
(A) Bed bath;
(B) Sponge, tub or shower bath;
(C) Shampoo in sink, tub or bed;
(D) Nail, skin and hair care;
(E) Oral hygiene;
(F) Toileting and elimination.
(10) Safe transfer techniques and ambulation;
(11) Normal range of motion and positioning;
(12) Adequate nutrition and fluid intake;
(13) Assistance in the administration of self-administered medications; and
(14) Other tasks which the home care agency may choose to have the home health aide perform within the scope of the aide's practice.
Home health aides shall for all practical purposes be considered employees of the home care agency and not independent contractors.
(l) "Hospice agency" means a private or public agency or organization licensed in West Virginia under the hospice licensing act as set forth in article five of this chapter for administration or provision of hospice care services to terminally ill persons in the persons' temporary or permanent residences by using an interdisciplinary team, including, at a minimum, persons qualified to perform nursing, social work, the general practice of medicine or osteopathy and pastoral or spiritual counseling. No hospice agency may be considered a home care service agency under this act.
(m) "Licensed practical nurse" means a person who is currently licensed in this state as a licensed practical nurse. Licensed practical nurses shall for all purposes be considered employees and not independent contractors.
(n) "Occupational therapist" means a person who is currently licensed in the state of West Virginia as an occupational therapist;
(o) "Occupational therapy assistant" means a person who is currently licensed in this state as an occupational therapy assistant. Occupational therapy assistants shall for all practical purposes be considered employees and not independent contractors.
(p) "Part-time or intermittent service" means services which are provided for less than eight hours a day or less than forty hours a week.
(q) "Pharmacist" means a person who is currently licensed in this state as a pharmacist.
(r) "Physical therapist" means a person who is currently licensed in this state as a physical therapist.
(s) "Physical therapist assistant" means a person who is currently licensed in this state as a physical therapist assistant. Physical therapist assistants shall for all practical purposes be considered employees and not independent contractors.
(t) "Physician" means a doctor of medicine or doctor of osteopathy who holds a current and valid license to practice medicine.
(u) "Registered nurse" means a person currently licensed in this state to use the title registered professional nurse.
(v) "Registry services" means any organization or part thereof which exists, in whole or in part, to match, place or supply a professional or paraprofessional care-giver with a patient or client for the purposes of providing in-home care to the patient or client, including, but not limited to, support services, attendant care services, custodial care services, nursing services or therapy services. The term does not include professional nursing registries which exist to refer registered nurses to patients or clients for providing in-home care and which do not maintain individual care records, do not coordinate or monitor care, determine charges for services or bill patients or clients for services.
(w) "Secretary" means secretary of the West Virginia department of health and human resources.
(x) "Skilled nursing services" means a plan of nursing and services which requires specialized knowledge of its aspects. It is a comprehensive selection of nursing services provided by or under the direction of a registered nurse which is based upon patient assessment consistent with a physician's directed plan of care.
(y) "Social worker" means a person who is currently licensed in this state as a social worker.
(z) "Speech pathologist" means a person who is currently licensed in this state as a speech pathologist.
(aa) "Speech audiologist" means a person who is currently licensed in this state as a speech audiologist.
(bb) "Subdivision" means a component of a multifunction health agency, such as the home care department of a hospital or the nursing division of a health department, which provides services unique to the subdivision in support of home care agencies.
§16-5M-3. Home care service providers to obtain license;
application; fees and inspections.

(a) No person, partnership, association or corporation or any governmental unit or any division, department, board or agency thereof may obtain a Class I license under this article unless they have been granted a certificate of need as defined in article two of this chapter.
(b) Deemed status. -- A home care agency qualified and certified to participate in the medicare program shall be exempt from inspection but shall comply with the requirements set forth herein. Home care agencies which have been found by an appropriate governmental agency to be in noncompliance with applicable medicare standards may lose this consideration and be required to submit to licensure review for a period of twenty-four months.
(c) No person, partnership, association or corporation, or any governmental unit or any division, department, board or agency thereof may provide Class I or Class II home care services without first obtaining a license from the West Virginia department of health and human resources in accordance with the provisions of this article and any applicable rules: Provided, That this section may not prevent any home care service provider which received a certificate of need, as defined in article two-d of this chapter from operating until such time as the rules required by section four of this article become effective and the secretary grants or denies an application for a license filed by the provider. Any such agency in operation prior to the effective date of the rules which desires to continue operating as a home care service provider shall apply for a license under this article within thirty days after the date the rules become effective. The home care service provider may continue operation until the secretary grants or denies an application for the license filed by the provider. Hospice agencies, licensed in this state, are exempt from the licensing provisions of this article.
(d) Any person, partnership, association or corporation or any governmental unit or division, department, board or agency thereof, desiring a license hereunder shall file an application with the secretary for a Class I or Class II home care license, or both, in such form as the secretary prescribes. Application forms shall be accompanied by a fee to be set by the secretary: Provided, That the fee may not be more than two hundred fifty dollars for a Class I or Class II home care license. Renewal licenses shall be accompanied by a fee set by the secretary: Provided, however, That the fee may not be more than one hundred dollars. All licensing fees shall go to the West Virginia department of health and human services and be utilized to carry out the provisions of this act.
(e) The department shall issue an initial Class I or Class II license to operate a home care agency after a survey conducted by the department indicates that the applicant is in substantial compliance with the requirements set forth herein. The initial survey will include an on-site inspection, except for those agencies granted deemed status under section three herein.
(f) The Class I or Class II license issued by the department shall expire one year from the date of issuance. License renewals shall expire one year from the date of issuance. Applications for a license renewal shall be submitted at least sixty days prior to the expiration date of the license, along with the required renewal fee.
(g) A provisional license may be issued by the secretary when numerous minor deficiencies or one or more serious and substantial deficiencies exist which have a substantial impact on operation, management or provision of services in the event:
(1) The applicant is taking appropriate steps to correct the deficiencies in accordance with a timetable submitted by the applicant and agreed upon by the department; and
(2) There is no danger to the health or safety of any patient or client: Provided, That the department may issue a provisional license for a specific period, not to exceed twelve months.
(h) The current license shall be posted in a conspicuous place in the home health care agency.
(i) The secretary shall inspect all providers that are subject to the rules adopted under this article no less than one time during the term of any license.
§16-5M-4. Denial; suspension; revocation.

The secretary is authorized to deny licensure to any applicant or suspend or revoke an existing license issued hereunder if the provisions of this article or any rules made hereunder are violated.
Before a license may be denied, suspended or revoked a written notice shall be forwarded to the applicant or licensee, stating the grounds of the action and the date, time and place for a hearing to contest the action. The hearing date may not be less than thirty days from the time notice is given. The notice shall be sent by certified mail, return receipt requested, to the applicant or licensee at the last known address for the applicant or licensee. The applicant or licensee may be represented by legal counsel at the hearing.
If a license is denied or revoked, a new application for a license shall be considered for reinstatement by the secretary if evidence is provided that the conditions upon which denial or revocation was based have been corrected. A license shall be reinstated after inspection has been made and the secretary is satisfied that the licensee has complied with all provisions of this article and any rules made hereunder.
The provisions contained in article five, chapter twenty-nine-a of this code shall govern any hearing required by this article.
Any applicant or licensee who is dissatisfied with the decision of the secretary after the hearing required herein, may, within thirty days after receiving notice of the decision, appeal to the circuit court of Kanawha County for judicial review.
Any party may appeal the circuit court's decision to the supreme court of appeals.
§16-5M-5. Violations; penalties; injunctions.

(a) Any person, partnership, association or corporation and any state or local governmental unit or any division, department, board or agency thereof which establishes, conducts, manages or operates a home care service without first obtaining a license as required herein, or which violates any provisions of this article or any rule made hereunder, is guilty of a misdemeanor, and, upon conviction thereof, shall for the first offense be fined not more than five hundred dollars, or imprisoned in the county or regional jail for not more than ninety days, or both fined and imprisoned. For each subsequent offense the fine may be increased to not more than five thousand dollars, or imprisonment in the county or regional jail may be increased for not more than an additional ninety days, or both the increased fine and the increased imprisonment may be imposed. Each day of a continuing violation after a conviction for any violation shall be considered a separate offense.
(b) Notwithstanding any provision of this code to the contrary, the secretary may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, corporation or any governmental unit or any division, department, board or agency thereof, to restrain or prevent the establishment, conduct, management or operation of any home care service or any violation of any provision of this article or any rule made thereunder.
§16-5M-6. West Virginia department of health and human resources
to establish rules.

The secretary after soliciting the advice from affected parties, shall make rules for the licensure of home care service providers in order to ensure that adequate care, treatment, service, health, safety and welfare are provided to any patient or client, that the self-determination of the patient or client is preserved and to ensure compliance with the provisions of this article. Rules regulating Class I and Class II licenses shall address the following:
(a) Management, operation and staffing of home care service providers;
(b) Qualifications, training and supervision of licensed or certified and nonlicensed or noncertified home care personnel;
(c) Provision and coordination and periodic review of an intraagency or interagency, or both, plan of treatment or care;
(d) Maintenance of records related to management, operations or current services;
(e) Procedure for the development of licensure standards that take into account utilization and quality of patient or client care, patient or client rights and self-determination;
(f) Procedures for investigation of complaints;
(g) Reporting of abuse, neglect or misappropriation of personal funds or property;
(h) Maintenance of written policies and procedures for volunteers that have direct patient or client contact;
(i) Maintenance of written policies on obtaining regular reports on patient or client satisfaction; and
(j) Such other requirements as the secretary may determine to be appropriate.



NOTE: The purpose of this bill is to create the home care service licensure act. The bill sets up a new article regulating home care service providers that includes a purpose provision; definitions; provisions applicable to licensure requirements and fees; provisions concerning the denial, suspension or revocation of licenses; criminal penalties; provisions relating to petitioning for injunctions; and the establishment of rule-making authority.

This article is new; therefore, strike-throughs and underscoring have been omitted.