Senate Bill No. 440
(By Senators Prezioso, Unger and Bowman)
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[Introduced February 4, 2004; referred to the Committee on Health
and Human Resources; and then to the Committee on Finance.]
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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 article 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;
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 AND INSPECTION OF SERVICE PROVIDERS IN
LEGALLY UNLICENSED HEALTH CARE 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 providers of
services to such residents in unlicensed homes will help to
identify where the services are available and to ensure that
individuals in unlicensed homes are receiving care appropriate to
their needs.
§16-5E-1a. Powers, rights and duties of the director.
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;
(e) (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 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.
§16-5E-3. Registration of service providers 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 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 provided by the secretary and updated as
required by the secretary.
(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.
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. Enforcement; 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 the service provider of the
requirements of this article and rules adopted hereunder. The
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 or
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 in this article.
NOTE: The purpose of this bill is to provide a waiver of
certain requirements for registered service providers and their
homes. The bill also allows nursing services to be provided in the
homes, while adding a one-time fee of $25.00 for registration of a
service provider. Finally, it replaces criminal sanctions with
civil penalties for noncompliant providers while clarifying the
nature of continuing enforcement authority of the secretary of
health and human resources.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§16-5E-7 is new; therefore, strike-throughs and underscoring
have been omitted.
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