ENROLLED
H. B. 2741
(By Delegates Compton, Mahan,
Hutchins, Thomas, Pino, Louisos and Capito)
[Passed April 12, 1997; in effect ninety days from passage.]
AN ACT 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-o, relating
to medication administration by unlicensed personnel; short
title; definitions; administration of medications by staff
members in certain residential facilities; exemption from
licensure; authorizing creation of a council of nurses;
instructions and training requirements; eligibility
requirements for authorization; oversight administration;
procedures for withdrawal of authorization; authorization
for fee schedules; limitations on administration of
medication and authority to promulgate emergency and
legislative 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-o, to read
as follows:
ARTICLE 5O. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.
§16-5O-1. Short title.
This article may be cited as the "Medication Administration
by Unlicensed Personnel Act."
§16-5O-2. Definitions.
As used in this article, unless a different meaning appears
from the context, the following definitions apply:
(a) "Administration of medication" means:
(1) Assisting a person in the ingestion, application or
inhalation of medications, including prescription drugs, or in
the use of universal precautions or rectal or vaginal insertion
of medication, according to the legibly written or printed
directions of the attending physician or authorized practitioner,
or as written on the prescription label; and
(2) Making a written record of such assistance with regard to
each medication administered, including the time, route and
amount taken:
Provided, That for purposes of this article,
"administration" does not include judgement, evaluation,
assessments, injections of medication, monitoring of medication
or self-administration of medications, including prescription
drugs and self-injection of medication by the resident.
(b) "Authorizing agency" means the department's office of
health facility licensure and certification.
(c) "Department" means the department of health and human
resources.
(d) "Facility" means an ICF/MR, a personal care home,
residential board and care home, behavioral health group home,
private residence in which health care services are provided under the supervision of a registered nurse or an adult family
care home that is licensed by or approved by the department.
(e) "Facility staff member" means an individual employed by a
facility but does not include a health care professional acting
within the scope of a professional license or certificate.
(f) "Health care professional" means a medical doctor or
doctor of osteopathy, a podiatrist, registered nurse, practical
nurse, registered nurse practitioner, physician's assistant,
dentist, optometrist or respiratory care professional licensed
under chapter thirty of this code.
(g) "ICF/MR" means an intermediate care facility for the
mentally retarded which is certified by the department.
(h) "Medication" means a drug, as defined in section one
hundred one, article one, chapter sixty-a of this code, which has
been prescribed by a duly authorized health care professional to
be ingested through the mouth, applied to the outer skin, eye or
ear, or applied through nose drops, vaginal or rectal
suppositories.
(i) "Registered professional nurse" means a person who holds
a valid license pursuant to article seven, chapter thirty of this
code.
(j) "Resident" means a resident of a facility.
(k) "Secretary" means the secretary of the department of
health and human resources or his or her designee.
(l) "Self-administration of medication" means the act of a
resident, who is independently capable of reading and
understanding the labels of drugs ordered by a physician, in opening and accessing pre-packaged drug containers, accurately
identifying and taking the correct dosage of the drugs as ordered
by the physician, at the correct time and under the correct
circumstances.
(m) "Supervision of self-administration of medication" means
a personal service which includes reminding residents to take
medications, opening medication containers for residents, reading
the medication label to residents, observing residents while they
take medication, checking the self administered dosage against
the label on the container and reassuring residents that they
have obtained and are taking the dosage as prescribed.
§16-5O-3. Administration of medications in facilities.
(a) The secretary is authorized to establish and implement a
program for the administration of medications in facilities. The
program shall be developed and conducted in cooperation with the
appropriate agencies, advisory bodies and boards.
(b) Administration of medication pursuant to this article
shall be performed only by:
(1) Registered professional nurses;
(2) Other licensed health care professionals; or
(3) Facility staff members who have been trained and
retrained every two years and who are subject to the supervision
of and approval by a registered professional nurse.
(c) Subsequent to assessing the health status of an
individual resident, a registered professional nurse, in
collaboration with the resident's attending physician and the
facility staff member, may recommend that the facility authorize a facility staff member to administer medication if the staff
member:
(1) Has been trained pursuant to the requirements of this
article;
(2) Is considered by the registered professional nurse to be
competent;
(3) Consults with the registered professional nurse or
attending physician on a regular basis; and
(4) Is monitored or supervised by the registered professional
nurse.
(d) Nothing in this article may be construed to prohibit any
facility staff member from administering medications or providing
any other prudent emergency assistance to aid any person who is
in acute physical distress or requires emergency assistance.
(e) Supervision of self-administration of medication by
facility staff members who are not licensed health care
professionals may be permitted in certain circumstances, when the
substantial purpose of the setting is other than the provision of
health care.
§16-5O-4. Exemption from licensure; statutory construction.
(a) Any individual who is not otherwise authorized by law to
administer medication may administer medication in a facility if
he or she meets the requirements and provisions of this article.
Any person who administers medication pursuant to the provisions
of this article shall be exempt from the licensing requirements
of chapter thirty of this code.
(b) All licensed health care professionals as defined in this article remain subject to the provisions of their respective
licensing laws.
(c) Notwithstanding any other provision of law to the
contrary, the provisions of this article shall not be construed
to violate or be in conflict with any of the provisions of
articles seven or seven-a, chapter thirty of this code.
§16-5O-5. Instruction and training.
(a) The office of health facility licensure and certification
shall establish a council of nurses to represent the facilities
and registered professional nurses affected by the provisions of
this article. The council of nurses shall prepare a procedural
manual and recommendations regarding a training course to the
secretary of the department of health and human resources. The
council shall meet every two years to review the training
curricula, competency evaluation procedures and rules implemented
by the secretary, and shall make recommendations as deemed
necessary.
(b) The department shall develop and approve training
curricula and competency evaluation procedures for facility staff
members who administer medication pursuant to the provisions of
this article. The department shall consider the recommendations
of the council of nurses and shall consult with the West Virginia
board of examiners for registered nurses in developing the
training curricula and competency evaluation procedures.
(c) The program developed by the department shall require
that any person who applies to act as a facility staff member
authorized to administer medications pursuant to the provisions of this article shall:
(1) Hold a high school diploma or general education diploma;
(2) Be trained or certified in cardiopulmonary resuscitation
and first aid;
(3) Participate in the initial training program developed by
the department;
(4) Pass a competency evaluation developed by the department;
and
(5) Subsequent to initial training and evaluation, participate
in a retraining program every two years.
(d) Any facility may offer the training and competency
evaluation program developed by the department to its facility
staff members. The training and competency programs shall be
provided by the facility through a registered professional nurse.
(e) A registered nurse who is authorized to train facility
staff members to administer medications in facilities shall:
(1) Possess a current active West Virginia license in good
standing to practice as a registered nurse;
(2) Have practiced as a registered professional nurse in a
position or capacity requiring knowledge of medications for the
immediate two years prior to being authorized to train facility
staff members; and
(3) Be familiar with the nursing care needs of residents of
facilities as described in this article.
§16-5ON-6. Availability of records; eligibility requirements of
facility staff.
(a) Any facility which authorizes unlicensed staff members to administer medications pursuant to the provisions of this article
shall make available to the authorizing agency a list of the
individual facility staff members authorized to administer
medications.
(b) A facility may permit a facility staff member to
administer medications in a single specific agency only after
compliance with all of the following:
(1) The staff member has successfully completed a training
program and received a satisfactory competency evaluation as
required by the provisions of this article;
(2) The facility determines there is no statement on the
state administered nurse aide registry indicating that the staff
member has been the subject of finding of abuse or neglect of a
long-term care facility resident or convicted of the
misappropriation of such a resident's property;
(3) The facility staff member has had a criminal background
check or if applicable, a check of the state police abuse
registry, establishing that the individual has been convicted of
no crimes against persons or drug related crimes;
(4) The medication to be administered is received and
maintained by the facility staff member in the original container
in which it was dispensed by a pharmacist or the prescribing
health care professional; and
(5) The facility staff member has complied with all other
applicable requirements of this article, the rules adopted
pursuant to this article and such other criteria, including
minimum competency requirements, as are specified by the authorizing agency.
§16-5ON-7. Oversight of medication administration by unlicensed
personnel.
(a) Each facility in which medication is administered by
unlicensed personnel shall establish in policy an administrative
monitoring system. The specific requirements of the
administrative policy shall be established by the department
through rules proposed pursuant to section eleven of this
article.
(b) Monitoring of facility staff members authorized pursuant
to this article shall be performed by a registered professional
nurse employed or contracted by the facility.
§16-5ON-8. Withdrawal of authorization.
The registered professional nurse who monitors or supervises
the facility staff members authorized to administer medication
pursuant to this article may withdraw authorization for a
facility staff member if the nurse determines that the facility
staff member is not performing medication administration in
accordance with the training and written instructions. The
withdrawal of the authorization shall be documented and shall be
relayed to the facility and the department in order to remove the
facility staff member from the list of authorized individuals.
§16-5ON-9. Fees.
The department may set and collect fees necessary for the
implementation of the provisions of this article pursuant to
rules authorized by section eleven of this article.
§16-5NO-10. Limitations on medication administration.
The following limitations apply to the administration of
medication by facility staff members:
(a) Injections or any parenteral medications may not be
administered;
(b) Irrigations or debriding agents used in the treatment of
a skin condition or minor abrasions may not be administered;
(c) No verbal medication orders may be accepted, no new
medication orders shall be transcribed and no drug dosages may be
converted and calculated; and
(d) No medications ordered by the physician or a health care
professional with legal prescriptive authority to be given "as
needed" may be administered unless the order is written with
specific parameters which preclude independent judgment.
§16-5ON-11. Rules.
The department shall promulgate emergency rules pursuant to
the provisions of section fifteen, article three, chapter twenty- nine-a of this code as may be necessary to implement the
provisions of this article. Subsequently, the department may
propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
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