Senate Bill No. 120
(By Senators Helmick and Hunter)
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[Introduced February 25, 1997; referred to the Committee
on Health and Human Resources; and then to the Committee on
Finance.]
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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 thirty-five,
relating to home medical equipment service provider
licensing; establishing a licensing board; members,
appointment and terms; definitions; license required;
exemptions; provisional licenses; license application and
fees; renewal; inspections; rules; standards; violations;
criminal penalties; administrative orders; and injunctive
relief.
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 thirty-five, to
read as follows:
ARTICLE 35. HOME MEDICAL EQUIPMENT SERVICE LICENSING.
§16-35-1. Definitions.
(a) "Home medical equipment" means medical devices, supplies
and gases prescribed by a licensed physician for use in a
residence or noninstitutional environment including, but not
limited to, the following:
(1) Oxygen;
(2) Oxygen delivery systems;
(3) Ventilators;
(4) Electronic and computer-driven wheelchairs and seating
systems;
(5) Apnea monitors;
(6) Transcutaneous electrical nerve stimulator units;
(7) Low air loss cutaneous pressure management devices;
(8) Sequential compression devices;
(9) Neonatal home phototherapy devices;
(10) Feeding pumps;
(11) Electrically-powered hospital beds;
(12) Infusion pumps; and
(13) Other devices, equipment, supplies and gases as may be
designated by the West Virginia board of home medical equipment
services in legislative rules proposed in accordance with article three, chapter twenty-nine-a of this code, and in consultation
with the West Virginia department of health and human resources.
(b) "Home medical equipment services" means the delivery,
installation, maintenance or replacement of, or instruction in
the use of, home medical equipment used by a sick or disabled
individual to allow the individual to be maintained in their
residence or a noninstitutional environment.
(c) "Home medical equipment services provider" means an
individual, partnership, corporation or other entity licensed
under this article to supply home medical equipment services to
patients on the order or prescription of a physician licensed to
order or prescribe that equipment and to other licensed suppliers
of home medical equipment services.
§16-35-2. License required.
(a) On or after the first day of July, one thousand nine
hundred ninety-eight, no person, partnership, corporation or
other entity may provide home medical equipment services unless
it is licensed by the West Virginia board of home medical
equipment services pursuant to this article.
(b) Except as otherwise provided in this article, a home
medical equipment services provider shall be licensed by the West
Virginia board of home medical equipment services before the
provider may provide home medical equipment services. When an individual, partnership, corporation or other entity provides
home medical equipment services from more than one location
within this state, each of these locations are required to obtain
a license under this article.
(c) An applicant for licensure under this article shall
submit an application to the board upon a form prescribed and
provided by the board. The applicant shall pay a fee of three
hundred dollars at the time the application is submitted. A
license to provide home medical equipment services pursuant to
this article is effective upon written notification from the
board that the applicant has met all applicable standards and has
otherwise complied with the requirements of this article. Except
as otherwise provided by this section, the board shall inspect
each applicant for licensure for compliance with this article
before issuing an original license.
(d) An applicant for licensure pursuant to this article may
submit documentation of current accreditation by the joint
commission on the accreditation of health care organizations or
"CHAP". The board shall issue a license upon receipt of this
documentation from the accrediting organization without
inspecting the applicant as otherwise provided in subsection (c)
of this section.
(e) A license issued pursuant to this article is valid for a period not to exceed twelve months and expires on the next
ensuing first day of July after its issuance. A license may be
renewed by an applicant upon payment to the board of a license
renewal fee of two hundred dollars.
(f) Upon application and payment to the board of a three
hundred dollar fee, home medical equipment services providers who
have been engaged in the business of providing home medical
equipment services for at least three months prior to the
effective date of this article shall be granted a license, valid
for a period not to exceed twelve months, without being subject
to the inspection required by subsection (c) of this section:
Provided, That during the effective period a license issued
pursuant to this subsection, the holder thereof is subject to
inspection by the board for compliance with all applicable
standards and requirements of this article. If, upon inspection,
the board determines that the provider is not in compliance with
the requirements of this article, the provider shall be issued a
provisional license, valid for a period not to exceed six months,
and upon the expiration of which the board shall reinspect the
provider to determine if compliance has been achieved. Upon the
issuance of any provisional license pursuant to this subsection,
the board shall furnish the provider with a written notice of all
instances of noncompliance. Providers who are licensed after inspection by the board as required by subsection (c) of this
section are not subject to reinspection by the board as provided
in this subsection.
§16-35-3. Exemptions to licensure requirements.
The licensure requirements of this article do not apply to
the following entities or practitioners unless the entity or
practitioner provides home medical equipment services through a
separate corporation, division or other business entity:
(1) Home health agencies, as defined in section two, article
two-d, of this chapter, except those which also provide home
medical equipment services;
(2) Hospitals, as defined in section two, article two-d of
this chapter, except those owned by or related to providers of
home medical equipment services;
(3) Manufacturers and wholesale distributors of home medical
equipment, unless engaged in selling their products directly to
patients/consumers;
(4) Health care providers, as defined in section two,
article two-d of this chapter, licensed to order or prescribe
home medical equipment, or who use home medical equipment in
treating patients, including, but not limited to, the following:
Physicians, nurses, physical therapists, respiratory therapists,
occupational therapists, pharmacists, dentists, speech pathologists, optometrists, chiropractors and podiatrists;
(5) Pharmacies, as defined in section one-b, article five,
chapter thirty of this code;
(6) Hospice programs, as defined in section two, article
five-i of this chapter;
(7) Nursing homes, as defined in section two, article five-c
of this chapter;
(8) Veterinarians, as defined in section one, article ten,
chapter thirty of this code; and
(9) Emergency medical service providers, as defined in
section three, article four-c of this chapter.
§16-35-4. Rules establishing certain standards; authority to
inspect.
(a) In accordance with article three, chapter twenty-nine-a
of this code, and in consultation with the commissioner of the
West Virginia department of health and human resources, the board
shall propose legislative rules establishing standards for
providing home medical equipment services which promote the
public health and welfare and govern the safety and quality of
home medical equipment service providers.
(b) The standards provided in this section shall require
licensed home medical equipment service providers to comply with
all applicable federal and state laws and regulations governing the use and dispensing of medical equipment, supplies, gases and
devices.
(c) The standards provided in this section shall, at a
minimum, require licensed home medical equipment service
providers to:
(1) Maintain a physical facility at the location licensed by
the board;
(2) Maintain an inventory of medical equipment at the
location licensed by the board;
(3) Maintain product liability and professional liability
insurance;
(4) Maintain service records on all patients receiving home
medical equipment services; and
(5) Maintain procedures to ensure that all personnel engaged
in the delivery, maintenance, repair, cleaning and inventory
control of home medical equipment and the administration of home
medical equipment services are trained in the proper use and
administration of the services.
(d) The board may conduct random inspections of licensed
providers upon application for license renewal to ensure the
integrity and effectiveness of the licensing process. Evidence
of renewal of accreditation from an accrediting agency recognized
by the board shall exempt a licensee from the inspection.
(e) Upon the filing of a complaint by a consumer of home
medical equipment services or an agency of the federal or state
government, the board may at any time inspect the operations of
the licensed provider named in the complaint to determine
compliance with this article.
§16-35-5. Violations; criminal penalties; administrative orders;
injunctive relief to enforce compliance.
(a) Any person or entity providing home medical equipment
services without a license as required by this article is guilty
of a misdemeanor and, upon conviction therefor, may be fined an
amount not to exceed two hundred fifty dollars per day for each
day that the violation continues following the conviction.
(b) Any person or entity providing home medical equipment
services without a license as required by this article may be
ordered by the board to cease providing those services until the
entity applies for, and is issued, a license by the board. The
board is authorized to seek injunctive relief in the circuit
court to compel compliance with administrative orders issued
pursuant to this section.
§16-35-6. West Virginia board of home medical services created.
(a) There is hereby established the West Virginia board of
home medical services for the purpose of administering and
enforcing the provisions of this article.
(b) The board is composed of three home medical equipment
services providers, one licensed registered nurse, one licensed
respiratory care therapist, one licensed primary care physician,
and one citizen member who has no interest, financial or
otherwise, in home medical equipment or services.
(c) Members of the board shall be appointed by the governor,
with the advice and consent of the Senate. Except for the
citizen member, all members of the board shall have been
regularly engaged in the direct provision of home medical
equipment services or related home care services, or shall have
ordered or prescribed these services or equipment, for at least
five years next preceding the date of their appointments.
(d) All members of the board shall be appointed for terms of
five years and are eligible for reappointment.
(e) Unless otherwise specifically provided herein, the
provisions of article one, chapter thirty of this code apply to
the board established herein.
NOTE: The purpose of this bill is to create the West
Virginia home medical equipment service licensing board and
provide for its powers and duties.
This article is new; therefore, strike-throughs and
underscoring have been omitted.