ENGROSSED
Senate Bill No. 531
(By Senator Unger)
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[Introduced March 14, 2005; referred to the Committee
on Health and Human Resources; and then to the Committee on
Government Organization.]
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A BILL to amend and reenact §16-5I-1, §16-5I-2, §16-5I-3, §16-5I-4,
§16-5I-5 and §16-5I-6 of the Code of West Virginia, 1931, as
amended, all relating to the Hospice Licensure Act; requiring
compliance with the Centers for Medicare and Medicaid
Services; and penalties.
Be it enacted by the Legislature of West Virginia:
That §16-5I-1, §16-5I-2, §16-5I-3, §16-5I-4, §16-5I-5 and
§16-5I-6 of the Code of West Virginia, 1931, as amended, be amended
and reenacted, all to read as follows:
ARTICLE 5I. HOSPICE LICENSURE ACT.
§16-5I-1. Purpose and short title.
This article shall be known as the Hospice Licensure Act. The
purpose of this Act is to establish licensing requirements for
hospices. It is the intent of the Legislature to establish,
promote and make available within this state a comprehensive hospice care program for the treatment of physical, emotional and
mental symptoms of terminal illness. as described in article five-
d, chapter sixteen of this code
§16-5I-2. Definitions.
(a) "Bereavement services" means support services designed to
assist individuals to experience, respond emotionally to and adjust
to the death of another person.
(b) "Director" means the director of the West Virginia
department of health.
(c) (b) "Hospice" means a coordinated program of home and
inpatient care provided directly or through an agreement under the
direction of an identifiable hospice administration which provides
palliative and supportive medical and other health services to
terminally ill individuals and their families. Hospice utilizes a
medically directed interdisciplinary team. A hospice program of
care provides care to meet the physical, psychological, social,
spiritual and other special needs which are experienced during the
final stages of illness and during dying and bereavement.
(d) (c) "Interdisciplinary team" means the hospice client
patient and the client's patient's family, the attending physician
and the following hospice personnel: Physician, nurse, social
worker, clergy and trained volunteer. Providers of supportive
services such as mental health, pharmaceutical and any other
appropriate allied health services may also be included on the team as the needs of the individual dictate.
(e) (d) "Palliative services" means treatment directed at
controlling pain, relieving other symptoms and focusing on the
special needs of the individual and family as they experience the
stress of the dying process, rather than treatment designed for
investigation and intervention for the purpose of cure or
prolongation of life.
(f) (e) "Terminally ill" means that an individual has a
medical prognosis that his or her life expectancy is six months or
less or another length of time determined by the centers for
medicare and medicaid services and designated in federal hospice
regulations.
(g) (f) "Secretary" means the Secretary of the West Virginia
Department of Health and Human Resources. The Board of Health
Secretary may define in regulation any term or phrase used in this
article which is not expressly defined.
§16-5I-3. Hospices 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 operate a hospice unless such operation without first
obtains obtaining a license from the state director of health
Secretary in accordance with the provisions of this article and the
rules and regulations lawfully promulgated hereunder. Provided, That this section shall not prevent any hospice which has been or
is granted a certificate of need, as defined in article two-d of
this chapter from operating until such time as the rules and
regulations required by section four of this article become
effective and the director grants or denies an application for a
license filed by such hospice. Any hospice in operation prior to
the effective date of such rules and regulations which desires to
continue operating as a hospice shall apply for a license under
this article within thirty days after the date such rules and
regulations become effective.
(b) Any person, partnership, association or corporation or any
governmental unit or any division, department, board or agency
thereof desiring a license hereunder shall file with the director
Secretary an application in such form as the director Secretary
shall prescribe and furnish accompanied by a fee to be determined
by the Board of Health, based upon the number of persons served by
the hospice. The director Secretary shall inspect the hospice
prior to issuing a license. Upon receipt and review of an
application for license, the director Secretary shall issue a
license if the hospice is in compliance with the provisions of this
article and with the rules and regulations lawfully promulgated
hereunder. The license is not transferable or assignable.
(c) A license shall expire one year from the date of issuance.
Sixty days prior to the expiration date, an application for renewal shall be submitted on forms furnished by the director Secretary.
A license shall be renewed if the director Secretary determines
that the applicant is in compliance with this article and with all
rules promulgated hereunder.
(d) The director Secretary or his or her designee shall
inspect all hospices that are subject to rules adopted pursuant to
this article no less than annually periodically and at least as
often as required by the Centers for Medicare and Medicaid Services
in order to determine compliance with the provisions of this
article and with rules and regulations adopted hereunder, and
regulations promulgated by the Centers for Medicare and Medicaid
Services.
§16-5I-4. Suspension; revocation.
(a) The director Secretary is authorized to suspend or revoke
a license issued hereunder if the provisions of this article or of
the rules and regulations are violated.
(b) Before any such license is suspended or revoked, however,
written notice shall be given the licensee, stating the grounds of
the complaint, and the date, time and place set for the hearing on
the complaint, which date shall not be less than thirty days from
the time notice is given. Such notice shall be sent by registered
mail to the licensee at the address where the hospice concerned is
located. The licensee shall be entitled to be represented by legal
counsel at the hearing.
(c) If a license is revoked as herein provided, a new
application for a license shall be considered by the director
Secretary if, when and after the conditions upon which revocation
was based have been corrected and evidence of this fact has been
furnished. A new license shall then be granted after proper
inspection has been made and all provisions of this article and
rules and regulations promulgated hereunder have been satisfied.
(d) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern any hearing
authorized and required by the provisions of this article and the
administrative procedure in connection with and following any such
hearing, with like effect as if the provisions of said article five
were set forth in extenso in this section.
(e) Any applicant or licensee who is dissatisfied with the
decision of the director Secretary as a result of the hearing
provided in this section may, within thirty days after receiving
notice of the decision, appeal to the circuit court, in term or in
vacation, of Kanawha County for judicial review of the decision.
(f) The court may affirm, modify or reverse the decision of
the director Secretary and either the applicant or licensee or the
director Secretary may appeal from the court's decision to the
Supreme Court of Appeals.
§16-5I-5. Secretary of Health and Human Resources to establish
rules.
The Secretary of the Department of Health and Human Resources
shall may promulgate rules in accordance with the provisions of
chapter twenty-nine-a of this code for the licensure of hospice
programs to ensure adequate care, treatment, health, safety,
welfare and comfort of hospice patients. Such rules shall include,
but not be limited to:
(a) The qualifications and supervision of licensed and
nonlicensed personnel;
(b) The provision and coordination of inpatient care and in-
home treatment services, including the development of a written
plan of care;
(c) The management, operation, staffing and equipping of the
hospice program;
(d) The clinical and business records kept by the hospice;
(e) The procedures for the review of utilization and quality
of patient care; and
(f) Such other requirements as the Secretary determines to be
appropriate.
§16-5I-6. Violations; penalties; injunction.
(a) Any person, partnership, association or corporation and
any local governmental unit or any division, department, board or
agency thereof which establishes, conducts, manages or operates a
hospice without first obtaining a license therefor as herein
provided, or which violates any provisions of this article or any rule or regulation lawfully promulgated thereunder, shall be guilty
of a misdemeanor, and, upon conviction thereof, shall for the first
offense be fined not more than one hundred dollars, or imprisoned
in the county 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 hundred dollars, with imprisonment in the
county jail for not more than ninety days, or both such fine and
imprisonment shall be assessed a civil penalty by the Secretary not
to exceed fifty dollars for each violation. Each day of continuing
violation after conviction shall be considered a separate offense
violation.
(b) Notwithstanding the existence or pursuit of any other
remedy, the director 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 hospice or violation of any
provisions of this article or any rule or regulation lawfully
promulgated thereunder without first obtaining a license therefor
in the manner hereinbefore provided.