SECOND ENROLLMENT
COMMITTEE SUBSTITUTE
FOR
H. B. 2381
(By Delegates Amores, Webster, Palumbo and Kominar)
[Amended and again passed April 16,2005, as a result of the
objections of the Governor; in effect ninety days from passage.]
AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §16-5B-14; to amend
and reenact §16-5C-5 of said code; to amend and reenact §16-
5D-5 of said code; to amend and reenact §16-5E-1a of said
code; and to amend and reenact §16-5N-5 of said code, all
relating to patient or resident visitation rights; requiring
public or private hospitals to permit patient visitation
privileges for nonrelatives under certain circumstances; and
requiring the director to propose legislative rules for
certain resident visitation rights at nursing homes, assisted
living residences, legally unlicensed health care homes and
residential care communities.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §16B-5B-14; that §16-
5C-5 of said code be amended and reenacted; that 16-5D-5 of said
code be amended and reenacted; that §16-5E-1a of said code be
amended and reenacted; and that §16-5N-5 of said code be amended
and reenacted, all to read as follows:
ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.
§16-5B-14. Hospital visitation.
(a) A public or private hospital licensed pursuant to the
provisions of section two of this article is required to permit
patient visitation privileges for nonrelatives unless otherwise
requested by the patient or legal designee. For purposes of this
section, the term "legal designee" means and includes those persons
eighteen years of age or older, appointed by the patient to make
health care decisions for the patient pursuant to the provisions of
section six, article thirty of this chapter.
(b) It is the intent of the Legislature that this section
facilitate a patient's visitation with nonrelative individuals, and
may not, in any way, restrict or limit allowable uses and
disclosures of protected health information pursuant to the Health
Insurance Portability and Accountability Act, 42 U.S.C. §1320d-2
and the accompanying regulations in 45 CFR 164.500.
(c) No provision of this section may be construed to prevent
a hospital from otherwise restricting visitation privileges in
order to prevent harm to the patient or disruption to the facility.
ARTICLE 5C. NURSING HOMES.
§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;
(3) Qualifications of facility's administrators, medical
directors, nurses, aides, and other personnel;
(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;
(15) Visitation privileges that:
(A) Permit immediate access to a resident, subject to the
resident's right to deny or withdraw consent at any time, by
immediate family or other relatives of the resident;
(B) Permit immediate access to a resident, subject to
reasonable restrictions and the resident's right to deny or
withdraw consent at any time, by others who are visiting with the
consent of the resident; and
(C) Permit access to other specific persons or classes of
persons consistent with state and federal law.
(16) Admission, transfer and discharge rights.
ARTICLE 5D. ASSISTED LIVING RESIDENCES.
§16-5D-5. Rules; minimum standards for assisted living residences.
(a) The secretary shall propose rules for legislative approval
in accordance with the provisions of article three, chapter
twenty-nine-a of this code to carry out the purposes and intent of
this article and to enable the secretary to exercise the powers and
perform the duties conferred upon the secretary by this article.
(b) The secretary shall propose rules establishing minimum
standards of operation of assisted living residences, including,
but not limited to, the following:
(1) Administrative policies, including:
(A) An affirmative statement of the right of access to
assisted living residences 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;
(2) Minimum numbers and qualifications of personnel, including
management, medical and nursing, aides, orderlies and support
personnel, according to the size and classification of the assisted
living residence;
(3) Safety requirements;
(4) Sanitation requirements;
(5) Protective and personal services to be provided;
(6) Dietary services to be provided;
(7) Maintenance of health records;
(8) Social and recreational activities to be made available;
(9) Physical facilities;
(10) Requirements related to provision of limited and
intermittent nursing;
(11) Visitation privileges governing access to a resident by
immediate family or other relatives of the resident and by other
persons who are visiting with the consent of the resident; and
(12) Such other categories as the secretary determines to be
appropriate to ensure resident's health, safety and welfare.
(c) The secretary shall include in rules detailed standards
for each of the categories of standards established pursuant to
subsections (b) and (d) of this section and shall classify such
standards as follows:
(1) Class I standards are standards the violation of which, as
the secretary determines, would present either an imminent danger
to the health, safety or welfare of any resident or a substantial
probability that death or serious physical harm would result;
(2) Class II standards are standards which the secretary
determines have a direct or immediate relationship to the health,
safety or welfare of any resident, but which do not create imminent danger;
(3) Class III standards are standards which the secretary
determines have an indirect or a potential impact on the health,
safety or welfare of any resident.
(d) An assisted living residence shall attain substantial
compliance with standards established pursuant to this section and
such other requirements for a license as may be established by rule
under this article.
ARTICLE 5E. REGISTRATION AND INSPECTION OF SERVICE PROVIDERS IN
LEGALLY UNLICENSED HEALTH CARE HOMES.
§16-5E-1a. Powers, rights and duties of the director.
In the administration of this article, the director 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
providers registered 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) Visitation privileges governing access to a resident by
immediate family or other relatives of the resident and by other
persons who are visiting with the consent of the resident;
(8) Such other categories as the director 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;
(c) To issue directed plans of correction for deficiencies
identified during complaint investigations;
(d) To order closure of any home for failure to comply with a
directed plan of corrections;
(e) To take all actions required under the provisions of
sections three, four, five and six of this article; and
(f) To deny registration to any operator of a legally
unlicensed home who is listed on the state abuse registry.
ARTICLE 5N. RESIDENTIAL CARE COMMUNITIES.
§16-5N-5. Rules; minimum standards for residential care
communities.
(a) The secretary shall, by the first day of July, one
thousand nine hundred ninety-eight, propose all rules that may be
necessary or proper to implement or effectuate the purposes and
intent of this article and to enable the director to exercise the powers and perform the duties conferred herein. All rules
authorized or required pursuant to this article shall be proposed
by the secretary and promulgated in accordance with the provisions
governing legislative rules, contained in article three, chapter
twenty-nine-a of this code.
(b) The secretary shall propose rules establishing minimum
standards for the operation of residential care communities,
including, but not limited to, the following:
(1) Administrative policies, including: (i) An affirmative
statement of the right of access to residential care communities 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 (ii) a statement of the rights and responsibilities
of residents;
(2) Minimum numbers and qualifications of residential care
community personnel according to the size, classification and
health care needs of the residential care community;
(3) Safety requirements, except for those fire and life safety
requirements under the jurisdiction of the State Fire Marshal;
(4) Sanitation requirements;
(5) Protective and personal services required to be provided;
(6) Dietary services required to be provided;
(7) Maintenance of health records, including confidentiality;
(8) Social and recreational activities required to be made
available;
(9) Physical facilities;
(10) Requirements related to limited and intermittent nursing
care;
(11) Visitation privileges governing access to a resident by
immediate family or other relatives of the resident and by other
persons who are visiting with the consent of the resident; and
(12) Other items or considerations that the secretary
considers appropriate to ensure the health, safety and welfare of
residents of residential care communities.
(c) The secretary shall propose rules that include detailed
specifications for each category of standards required under
subsections (b) and (d) of this section, and shall classify these
standards as follows:
(1) Class I standards, the violation of which presents either
an imminent danger to the health, safety or welfare of a resident
or a substantial probability that death or serious physical harm
may result;
(2) Class II standards, the violation of which directly
implicates the health, safety or welfare of a resident, but which
does not present imminent danger thereto; and
(3) Class III standards, the violation of which has an
indirect or potential impact on the health, safety or welfare of any resident.
(d) A residential care community shall attain substantial
compliance in every category of standard enumerated in this section
in order to be considered as being in substantial compliance with
the requirements of this article and the rules promulgated
hereunder.
(e) Until such time as the secretary proposes rules governing
residential care communities under this section, existing rules
governing residential board and care homes shall apply to
residential care communities and shall be construed so as to
conform with the provisions of this article in their application to
residential care communities:
Provided, That to the extent any
provisions of the rule governing residential board and care homes
conflict with the provisions of this article, the provisions of
this article shall govern.
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