SB101 SUB2
Senate Bill 101 History
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COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 101
(By Senators McCabe, Cann, Miller, Jenkins and Barnes)
____________
[Originating in the Committee on the Judiciary;
reported March 1, 2013.]
____________
A BILL to amend and reenact §16-5C-15 of the Code of West Virginia,
1931, as amended, relating to clarifying that the Medical
Professional Liability Act applies to nursing homes and their
health care providers.
Be it enacted by the Legislature of West Virginia:
That §16-5C-15 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5C. NURSING HOMES.
§16-5C-15. Unlawful acts; penalties; injunctions; private right
of action.
(a) Whoever advertises, announces, establishes or maintains,
or is engaged in establishing or maintaining a nursing home without
a license granted under section six of this article, or who
prevents, interferes with or impedes in any way the lawful enforcement of this article shall be is guilty of a misdemeanor
and, upon conviction thereof, shall be punished for the first
offense by a fine of not more than
$
100, or by imprisonment
confinement in the county or regional jail for a period of not more
than ninety days, or by both such fine and imprisonment
confinement, at the discretion of the court. For each subsequent
offense, the fine may be increased to not more than
$
250, with
imprisonment confinement in the county or regional jail for a
period of not more than ninety days, or by both such fine and
imprisonment confinement, at the discretion of the court. Each day
of a continuing violation after conviction shall be is considered
a separate offense.
(b) The director may in his or her discretion bring an action
to enforce compliance with this article or any rule or order
hereunder whenever it shall appear appears to the director that any
person has engaged in, or is engaging in, an act or practice in
violation of this article or any rule or order hereunder, or
whenever it shall appear appears to the director that any person
has aided, abetted or caused, or is aiding, abetting or causing,
such an act or practice. Upon application by the director, the
circuit court of the county in which the conduct has occurred or is
occurring, or if emergency circumstances occur the circuit court of
Kanawha County, shall have has jurisdiction to grant without bond
a permanent or temporary injunction, decree or restraining order.
Whenever the director shall have has refused to grant or renew
a license, or shall have has revoked a license required by law to operate or conduct a nursing home, or shall have has ordered a
person to refrain from conduct violating the rules of the director,
and the person deeming himself or herself aggrieved by such refusal
or revocation or order shall have has appealed the action of the
director, the court may, during pendency of such the appeal, issue
a restraining order or injunction upon proof that the operation of
the nursing home or its failure to comply with the order of the
director adversely affects the well being or safety of the
residents of the nursing home. Should a person who is refused a
license or the renewal of a license to operate or conduct a nursing
home or whose license to operate is revoked or who has been ordered
to refrain from conduct or activity which violates the rules of the
director fails to appeal or should such the appeal be decided
favorably to the director, then the court shall issue a permanent
injunction upon proof that the person is operating or conducting a
nursing home without a license as required by law, or has continued
to violate the rules of the director.
(c) Any nursing home that deprives a resident of any right or
benefit created or established for the well-being of this resident
by the terms of any contract, by any state statute or rule, or by
any applicable federal statute or regulation, shall be liable to
the resident for injuries suffered as a result of such deprivation.
Upon a finding that a resident has been deprived of such a right or
benefit, and that the resident has been injured as a result of such
deprivation, and unless there is a finding that the nursing home
exercised all care reasonably necessary to prevent and limit the deprivation and injury to the resident, compensatory damages shall
be assessed in an amount sufficient to compensate the resident for
such injury. In addition, where the deprivation of any such the
right or benefit is found to have been willful or in reckless
disregard of the lawful rights of the resident, punitive damages
may be assessed. A resident may also maintain an action pursuant
to this section for any other type of relief, including injunctive
and declaratory relief, permitted by law. Exhaustion of any
available administrative remedies may is not be required prior to
commencement of suit hereunder under this subsection.
____(d) The amount of damages recovered by a resident, in an
action brought pursuant to this section, shall be is exempt for
purposes of determining initial or continuing eligibility for
medical assistance under article four, chapter nine of this code,
and may neither be taken into consideration nor required to be
applied toward the payment or part payment of the cost of medical
care or services available under said that article.
(e) Any waiver by a resident or his or her legal
representative of the right to commence an action under this
section, whether oral or in writing, shall be null and is void as
contrary to public policy.
(d) (f) The penalties and remedies provided in this section
are cumulative and shall be are in addition to all other penalties
and remedies provided by law.
(g) Nothing in this section or any other section of the code
shall limit the protections afforded nursing homes or their health care providers under article seven-b, chapter fifty-five of this
code.
Nursing homes and their health care providers shall be
treated in the same manner as any other health care facility or
health care provider under article seven-b, chapter fifty-five of
this code
.
The terms "health care facility" and "health care
provider" as used in this subsection shall have the same meaning as
set forth in
subsections (f) and (g), section two, article seven-b,
chapter fifty-five of this code.
____(h) The amendments to this section enacted during the 2013
Regular Session of the Legislature shall be effective July 1, 2013:
Provided, That there shall be no inference, either positive or
negative, to any legal action pending pursuant to this section as
of July 1, 2013. The proper construction of this section and the
limitations and provisions of article seven-b, chapter fifty-five
of this code shall be determined by principles of statutory
construction.
_______________
(NOTE: The purpose of this bill is to provide technical clean-
up and to clarify that the Legislature originally intended that the
Medical Professional Liability Act applies to nursing homes and
their health care providers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
This bill has been recommended for passage during the 2013
Regular Session by the Select Committee on PEIA, Seniors and Long
Term Care.)