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Introduced Version House Bill 2272 History

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hb2272 intr
H. B. 2272


(By Delegates Michael and Campbell)
[Introduced February 11, 2005; referred to the
Committee on Health and Human Resources then the Judiciary.]




A BILL to amend and reenact §16-5C-2 of the Code of West Virginia, 1931, as amended; and to further amend said article by adding thereto a new section, designated §16-5C-5a , all relating to requiring nursing homes or facilities to permit a resident or resident's legal representative to monitor the resident through the use of electronic monitoring devices; definitions; requiring the facility to provide access to a power source and mounting space to set up the electronic monitoring device; prohibiting the facility from refusing to admit an individual to the facility or removing a resident from the facility because of a request to install an electronic monitoring device and establishing criminal penalties.

Be it enacted by the Legislature of West Virginia:
That §16-5C-2
of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated §16-5C-5a , all to read as follows:
ARTICLE 5C. NURSING 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 considered to constitute 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 contributing to rehabilitation and administration of medication by any method which involves a level of complexity and skill in administration not possessed by the 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 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) "Electronic monitoring device" includes a video surveillance camera, an audio device, a video telephone or an internet video surveillance device.
The director may define in the rules any term used herein which is not expressly defined.
§16-5C-5a. Electronic monitoring devices.
(a) A nursing home or facility shall permit a resident or legal representative of the resident to monitor the resident through the use of an electronic monitoring device. Monitoring under this section shall:
(1) Be noncompulsory and at the election of the resident or legal representative of the resident;
(2) Be funded by the resident or legal representative of the resident;
(3) Protect the privacy rights of other residents and visitors to the institution to the extent reasonably possible; and
(4) Be allowed in the nursing home or facility and the institution may not refuse to admit an individual to the facility or remove a resident from the facility because of a request for electronic monitoring.
(b) A nursing home or facility shall make reasonable physical accommodations for electronic monitoring by providing:
(1) A reasonably secure place to mount the electronic monitoring device; and
(2) Access to a power source;
(3) Written notice to the resident or legal representative of the resident's right to electronic monitoring.
(c) A nursing home or facility may request a resident or a resident's personal representative to conduct electronic monitoring within plain view.
(d) A resident who wishes to install an electronic monitoring device may be required by the administrator of the nursing home or facility to make the request in writing.
(e) Subject to the West Virginia rules of evidence, a tape created through the use of electronic monitoring shall be admissible in either a civil or criminal action brought in a West Virginia court or administrative hearing.
(f) A person who operates a nursing home or facility in violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than two thousand dollars or confined in jail for not more than one year, or both.
(g) A person who willfully and without the consent of a resident hampers, obstructs, tampers with or destroys an electronic monitoring device or tape is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than two thousand dollars or confined in jail for not more than ninety days, or both fined and confined.

NOTE: The purpose of the bill is to require a nursing home to permit a resident or the legal representative of the resident to monitor the resident through the use of electronic monitoring devices. It establishes the responsibilities of the resident, the legal representative of the resident and the nursing home. It establishes penalties for noncompliance.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§16-5C-5a is new; therefore, strike-throughs and underscoring have been omitted.
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