COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 440
(By Senators Prezioso, Unger and Bowman)
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[Originating in the Committee on Health and Human Resources;
reported February 25, 2004.]
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A BILL to amend and reenact §16-5E-1, §16-5E-1a, §16-5E-2,
§16-5E-3, §16-5E-4, §16-5E-5 and §16-5E-6 of the code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto a new section, designated §16-5E-7, all relating to
allowing for a waiver of certain requirements for registered
service providers and their homes; allowing nursing services
to be provided in the homes; adding a one-time fee of
twenty-five dollars for registration of a service provider;
defining "statement of deficiencies"; replacing criminal
sanctions with civil penalties for noncompliance; clarifying
the nature of continuing enforcement authority; and other
stylistic changes.
Be it enacted by the Legislature of West Virginia:
That §16-5E-1, §16-5E-1a, §16-5E-2, §16-5E-3, §16-5E-4,
§16-5E-5 and §16-5E-6 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that said article be amended
by adding thereto a new section, designated §16-5E-7
, all to read
as follows:
ARTICLE 5E. REGISTRATION OF SERVICE PROVIDERS; INSPECTION OF
SERVICE PROVIDER HOMES.
§16-5E-1. Purpose.
It is the policy of this state to encourage the availability
of appropriate noninstitutional surroundings for the elderly and
for the care of persons in need limited and intermittent of nursing
care or personal assistance. The registration of service providers
of services to such residents in unlicensed registered homes will
help to identify where the services are available and to ensure
that individuals in unlicensed registered homes are receiving care
appropriate to their needs.
§16-5E-1a. Powers, rights and duties of the secretary.
In the administration of this article, the director secretary
shall have the following powers, duties and rights:
(a) To promulgate and enforce rules governing complaint
investigations within the homes of legally unlicensed health care
service providers registered as defined under this article. Such
rules shall include the minimum health, safety and welfare
standards in the following areas:
(1) Physical environment;
(2) Nutrition;
(3) Requirements related to limited and intermittent nursing care;
(4) Medication administration;
(5) Protective and personal services to be provided;
(6) Treatment;
(7) Such other categories as the director secretary determines
to be appropriate to ensure residents' health, safety and welfare.
(b) To exercise as sole authority all powers relating to
issuance, suspension and revocation of registration of legally
unlicensed homes providing health care service providers;
(c) To issue statements of deficiencies and directed plans of
correction for deficiencies violations identified during complaint
investigations;
(d) To order closure of any home assess a civil penalty of
fifty dollars per day for failure to comply with a directed plan of
corrections;
(e) To order closure of any home for continued failure to
comply with a directed plan of corrections;
(f) To take all actions required under the provisions of
sections three, four, five, and six of this article; and
(f) (g)To deny registration to any operator of a legally
unlicensed home service provider who is listed on the state abuse
registry; and
(h) To waive a requirement of the rule, governing service
providers and their homes, found in title sixty-four, series fifty,
of the code of state rules, if after a thorough investigation, the
secretary determines that the waiver will not adversely affect the health, safety, welfare or rights of the residents.
§16-5E-2. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) "Director" means the secretary of the department of health
and human resources or his or her designee.
(b) "Limited and intermittent nursing care" means direct hands
on nursing care of an individual who needs no more than two hours
of nursing care per day for a period of no longer than ninety
consecutive days per episode, which may only be provided when the
need for such care meets the following factors: (1) The resident
requests to remain in the home; (2) the resident is advised of the
availability of other specialized health care facilities to treat
his or her condition; and (3) the need for such care is the result
of a medical pathology or a result of normal aging process. Limited
and intermittent nursing care shall be provided under the
supervision of a registered professional nurse and in accordance
with rules promulgated by the director.
(c) (a) "Nursing care" means those procedures commonly employed
in providing for the physical, emotional and rehabilitational needs
of the ill or otherwise incapacitated which require technical
skills and knowledge beyond that which the untrained person
possesses, including, but not limited to, such procedures as:
Irrigations; catheterization; special procedures contributing to
rehabilitation; and administration of medication by any method
prescribed by a physician which involves a level of complexity and skill in administration not possessed by the untrained person.
(d) (b) "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 physical or mental impairment of the
resident.
(e) (c) "Resident" means an individual who is provided services,
whether or not for a fee, by a service provider, but resident does
not include a person receiving services provided by another who is
related to him or her or the spouse thereof by blood or marriage,
within the degree of consanguinity of the second cousin. Residents,
who are incapable of self-preservation, shall be housed only on a
ground floor level of the home with direct egress to the outside.
A registered unlicensed health care home shall: (1) Provide
residents at the time of admission with the name, address and
telephone number of the offices of health facility licensure and
certification, the state long-term care ombudsman, and adult
protective services, all within the department of health and human
resources; and (2) advise residents both orally and in writing of
their right to file a complaint with the aforementioned entities.
(d) "Secretary" means the secretary of the department of
health and human resources or his or her designee.
(f) "Self-preservation" means that a person is at least
capable of removing him or her self from situations involving
imminent danger, such as fire.
(g) (e) "Service provider" means the individual administratively responsible for providing, to consumers for a
period of more than twenty-four hours, whether for compensation or
not, services of personal assistance or nursing care for one to
three residents. and who may require limited and intermittent
nursing care, including those individuals who qualify for and are
receiving services coordinated by a licensed hospice: Provided,
That services utilizing equipment which requires auxiliary
electrical power in the event of a power failure may not be used
unless the home has a backup power generator.
(f) "Statement of deficiencies" means the written notice sent
by the secretary to a service provider advising him or her of any
violations of law or rules to be corrected.
§16-5E-3. Registration of service providers; fee required; form
of registration; information to be provided.
(a) Service providers shall register with the director
secretary. No fee may A one time fee of twenty-five dollars shall
be charged for registration. Registration information shall be
provided on a registration form provided by the secretary and
updated as required by the secretary. or may be verbally
communicated to the director for placement by the director on the
form, but no provision of information may be deemed to meet the
registration requirement until the signature of the service
provider is recorded on the registration form.
(b) Information required for registration shall include the
following:
(1) Name, address and telephone number of the service provider;
(2) Address and telephone numbers where services are provided
to residents and the number of residents provided service;
(3) The services, such as nursing care or personal assistance,
provided to residents; and
(4) Other information required by rules promulgated by the
director secretary.
(c) The director secretary may deny registration if the
information provided in an application is known by the applicant to
be false or the applicant fails to report required information.
(d) A legally unlicensed provider may operate no more than one
legally unlicensed home. A service provider shall register to
operate a specified home and shall operate no other home.
§16-5E-4. Public availability of registry.
The director secretary shall publish and make available to the
public on an annual basis a list of service providers registered in
accordance with section three of this article.
§16-5E-5. Inspections; right of entry; enforcement; hearings.
The director secretary may employ inspectors to enforce the
provisions of this article. These inspectors shall have the right
of entry into any place where services are provided by a service
provider, to determine the number of residents therein and the
adequacy of services being provided to them. The director
secretary may obtain a search warrant to inspect those premises
that the director secretary has reason to believe are being used to
provide services. The inspectors shall have access to all parts of the home and grounds, including, but not limited to, all areas of
all buildings on the grounds of a home, food supplies, resident
medications and resident medical records. Inspectors shall also be
permitted to conduct private interviews with all residents and
staff of a home.
If after investigating a complaint, the director secretary
determines that the complaint is substantiated and that an
immediate and serious threat to a resident's health or safety
exists, the director secretary may petition the circuit court for
an injunction, order of abatement or other appropriate action or
proceeding to: (1) Close the home; (2) transfer residents in the
home to other facilities; or (3) appoint temporary management to
oversee the operation of the home to assure the health, safety,
welfare and rights of the home's residents where there is a need
for temporary management to ensure compliance with the court's
order. Any home aggrieved by a determination or assessment made
pursuant to this section shall have the right to an administrative
appeal as set forth in section twelve, article five-c of this
chapter.
§16-5E-6. Civil and criminal penalties.
(a) Any service provider who fails to register with the
director secretary shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than five hundred
dollars or more than twenty-five hundred dollars or imprisoned in
jail not less than ten days, or more than thirty days assessed a
civil penalty of fifty dollars per day after notice by certified mail by from the director secretary to such service provider of the
requirements of this article. Each day the violation continues,
after the date of citation shall constitute a separate violation.
The date of citation is the date the service provider receives the
written statement of deficiencies.
(b) Any service provider who fails or refuses to comply with
a directed plan of corrections within the time period given is
subject to a civil penalty of fifty dollars per day. A civil
penalty may be assessed after notice to such service provider of
the requirements of this article and rules promulgated hereunder.
Such notice shall be sent by certified mail. Each day the violation
continues, after the date of citation, shall constitute a separate
violation. The date of citation is the date the service provider
receives the notice of failure to comply with the directed plan of
corrections.
(b) (c) Any person who interferes with or impedes in any way the
lawful enforcement of the provisions of this article is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than five hundred dollars or more than twenty-five hundred dollars
or imprisoned in the jail not less than ten days, or more than
thirty: Provided, That prior to the first day of July, one thousand
nine hundred eighty-nine, no such penalty may be imposed upon a
service provider until thirty days after notice by certified mail
by the director to the service provider at of the requirements of
this article.
(c) (d) If after investigating a complaint, the director secretary determines that the home is housing more than three
residents, the director secretary shall assess a civil penalty of
fifty dollars per day per the number of residents exceeding three.
Each day the violation continues, after the date of citation shall
constitute a separate violation. The date of citation is the date
the facility service provider receives the written statement of
deficiencies.
(d) (e) The director secretary may in his or her discretion bring
an action to enforce compliance with the provisions of this
article.
(e) (f) The circuit court of Kanawha County or the circuit court
of the county in which the conduct occurred shall have jurisdiction
in all civil enforcement actions brought under this article and may
order equitable relief without bond.
§16-5E-7. Continuing inspection and enforcement.
A request for an administrative appeal, or an action in
circuit court, concerning the secretary's denial of the
registration of a service provider, or concerning an enforcement
action taken by the secretary, does not preclude the secretary from
continuing to make inspections of the home or from taking other
enforcement actions provided for in this article.
NOTE: The purpose of this bill is to allow for a waiver of
certain requirements for registered service providers and their
homes, to allow for nursing services to be provided in the homes, to add a one-time fee of $25 for registration of a service
provider, to add civil penalties for non-compliance and to clarify
continuing enforcement powers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicated new language that would
be added.
Section seven is new; therefore, underlining and strike-
throughs have been omitted.
Adopted
Rejected