H. B. 3005
(By Delegate Leach)
[Introduced February 26, 1999; referred to the
Committee on Goverment Organization.]
A BILL to amend and reenact sections two and five, article
five-c, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article five-c by adding thereto a new section,
designated section fifteen-a, all relating to nursing homes;
defining terms; requiring that legislative rules setting
minimum required staffing levels be in accord with
enumerated factors; requiring legislative rules mandating
criminal background checks of employees to screen for
certain prior convictions; establishing offense of causing
intimidation at a nursing home; setting forth criminal
penalties; and providing for a private right of action.
Be it enacted by the Legislature of West Virginia:
That sections two and five, article five-c, chapter sixteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that said
article five-c be further amended by adding thereto a new
section, designated section fifteen-a, all to read as follows:
ARTICLE 5C. NURSING AND PERSONAL CARE HOMES AND RESIDENTIAL
BOARD AND CARE HOMES.
§16-5C-2. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) "Deficiency" means a nursing home's failure to meet the
requirements specified in article five-c, chapter sixteen of this
code and rules promulgated thereunder.
(b) "Director" means the secretary of the department of
health and human resources or his or her designee.
(c) "Household" means a private home or residence which is
separate from or unattached to a nursing home.
(d) "Immediate jeopardy" means a situation in which the
nursing home's noncompliance with one or more of the provisions
of this article or rules promulgated thereunder has caused or is
likely to cause serious harm, impairment or death to a resident.
(e) "Nursing home" or "facility" means any institution,
residence or place, or any part or unit thereof, however named,
in this state which is advertised, offered, maintained or operated by the ownership or management, whether for a
consideration or not, for the express or implied purpose of
providing accommodations and care, for a period of more than
twenty-four hours, for four or more persons who are ill or
otherwise incapacitated and in need of extensive, ongoing nursing
care due to physical or mental impairment or which provides
services for the rehabilitation of persons who are convalescing
from illness or incapacitation.
The care or treatment in a household, whether for
compensation or not, of any person related by blood or marriage,
within the degree of consanguinity of second cousin to the head
of the household, or his or her spouse, may not be deemed to
constitute construed as constituting a nursing home within the
meaning of this article. Nothing contained in this article
applies to: Nursing homes operated by the federal government; or
extended care facilities operated in conjunction with a hospital;
or institutions operated for the treatment and care of alcoholic
patients; or offices of physicians; or hotels, boarding homes or
other similar places that furnish to their guests only room and
board; or to homes or asylums operated by fraternal orders
pursuant to article three, chapter thirty-five of this code.
(f) "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 procedure procedures
contributing to rehabilitation, and administration of medication
by any method which involves a level of complexity and skill in
administration not possessed by the an untrained person.
(g) "Resident" means an individual living in a nursing home.
(h) "Review organization" means any committee or
organization engaging in peer review or quality assurance,
including, but not limited to, a medical audit committee, a
health insurance review committee, a professional health service
plan review committee or organization, a dental review committee,
a physician's advisory committee, a podiatry advisory committee,
a nursing advisory committee, any committee or organization
established pursuant to a medical assistance program, any
committee or organization established or required under state or
federal statutes, rules or regulations, and any committee
established by one or more state or local professional societies
or institutes, to gather and review information relating to the
care and treatment of residents for the purposes of: (1)
Evaluating and improving the quality of health care rendered; (2)
reducing morbidity or mortality; or (3) establishing and
enforcing guidelines designed to keep the cost of health care
within reasonable bounds. the cost of health care
(i) "Sponsor" means the person or agency legally responsible
for the welfare and support of a resident.
(j) "Person" means an individual and every form of
organization, whether incorporated or unincorporated, including
any partnership, corporation, trust, association or political
subdivision of the state.
(k) "Substantial compliance" means a level of compliance
with the rules such that no deficiencies exist or such that
identified deficiencies pose no greater risk to resident health
or safety than the potential for causing minimal harm.
(l) "Unlicensed nursing personnel" means an employee of a
nursing home who assists in providing care to the residents but
who does not hold a license issued pursuant to chapter thirty of
this code. The term does not include any employee whose
principal responsibilities are in management, administration,
food preparation, housekeeping, laundry or maintenance.
The director may define in the rules any term used herein
which is not expressly defined.
§16-5C-5. Rules; minimum standards for nursing homes.
(a) All rules shall be proposed for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code. The director shall recommend the
adoption, amendment or repeal of such rules as may be necessary
or proper to carry out the purposes and intent of this article. (b) The director shall recommend rules establishing minimum
standards of operation of nursing homes including, but not
limited to, the following:
(1) Administrative policies, including: (A) An affirmative
statement of the right of access to nursing homes by members of
recognized community organizations and community legal services
programs whose purposes include rendering assistance without
charge to residents, consistent with the right of residents to
privacy; and (B) a statement of the rights and responsibilities
of residents in nursing homes which prescribe, as a minimum, such
a statement of residents' rights as included in the United States
department of health and human services regulations, in force on
the effective date of this article, governing participation of
nursing homes in the medicare and medicaid programs pursuant to
titles eighteen and nineteen of the Social Security Act;
(2) Minimum numbers of administrators, medical directors,
nurses, aides and other personnel according to the occupancy of
the facility and the acuity of its residents. These minimum
standards shall provide for the employment of nursing personnel
and unlicensed nursing personnel in sufficient numbers to permit
the provision of care and services necessary to attain or
maintain the highest practicable physical, mental and
psychological well-being of each resident, consistent with
applicable state and federal reimbursement rates and practices;
(3) Qualifications of facility's administrators, medical
directors, nurses, aides, and other personnel, including a
requirement that the facility conduct a criminal history
background check or, if applicable, a check of the state police
central abuse registry, to establish that no employee has been
convicted of a crime against the person or a drug related
offense;
(4) Safety requirements;
(5) Sanitation requirements;
(6) Personal services to be provided;
(7) Dietary services to be provided;
(8) Medical records;
(9) Social and recreational activities to be made available;
(10) Pharmacy services;
(11) Nursing services;
(12) Medical services;
(13) Physical facility;
(14) Resident rights; and
(15) Admission, transfer and discharge rights.
§16-5C-15a. Intimidation at nursing homes; penalties; private
right of action.
(a) Any person, not an employee or resident of a nursing
home, who enters upon the premises of a nursing home for the purpose of engaging in an activity that would cause a reasonable
person to feel terrorized, frightened, intimidated, threatened,
harassed or molested, and whose activity thereon causes any
employee, resident or visitor to actually feel terrorized,
frightened, intimidated, threatened, harassed or molested, is
guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not more than one hundred dollars,
imprisonment in a county or regional jail for not more than
ninety days, or both. For a second or subsequent offense, the
fine may be increased to not more than two hundred fifty dollars.
Each day of a continuing violation constitutes a separate
offense.
(b) In addition to any criminal penalty that may be imposed
pursuant to subsection (a) of this section, any person who
violates the provisions of this section is also subject to civil
liability for damages in an action brought by any nursing home,
employee, resident or visitor actually harmed by the violation.
(c) Nothing in this section may be construed to prohibit
activity or conduct otherwise protected by the constitution or
laws of this state or of the United States.
NOTE: The purpose of this bill is to assure proper
treatment of nursing home residents by providing for minimum
staffing levels, requiring criminal background checks of
employees and prohibiting threatening activity at the facility.
Strike-throughs indicate language that would be stricken
from present law and underscoring indicates new language that
would be added.
§16-5C-15a is new; therefore, strike-throughs and
underscoring have been omitted.