H. B. 2386
(By Delegates Hatfield, Martin and Caputo)
[Introduced February 16, 2005; referred to the
Committee on Health and Human Resources then Government
A BILL to amend and reenact §16-5C-2 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto two
new sections, designated §16-5C-5a and §16-5C-5b, all relating
to nursing homes; defining certain terms; requiring the
posting of staffing data; and providing for the right of
family members to form family councils at nursing homes.
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 code be amended by adding
thereto two new sections, designated §16-5C-5a and §16-5C-5b, all
to read as follows:
ARTICLE 5C. NURSING HOMES.
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
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,
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) "Staff directly responsible for care" means either
licensed or unlicensed staff assigned direct care responsibilities for a specific resident or residents. This does not include the
director of nursing in facilities with more than sixty residents,
or other administrative staff who regularly do not have direct care
responsibilities unless the facility has identified an emergency
situation that has been confirmed by the State's Nursing Home
(m) "Family council" means a meeting of family members,
friends or representatives of two or more residents to confer in
private without facility staff. A family council has the right to
express grievances in relation to the resident's well-being in
general and to make recommendations concerning nursing home
policies and procedures.
The director may define in the rules any term used herein
which is not expressly defined.
§16-5C-5a. Posting staffing data.
(a) A nursing home or facility shall publicly post staffing
information in the facility. A form, approved by the Department of
Health and Human Resources shall be used to post the information.
The form shall require and include the following:
(1) The name and title of each staff present and directly
responsible for resident care;
(2) The area, floor and wing of the facility where the staff
(3) The number of residents assigned to each staff;
(4) The number of residents currently present in the facility;
(5) The name of the staff completing the information form;
(6) The time and date the form was completed;
(7) The information must be posted each shift;
(8) The form used must be posted in an area that is open to
the public and in the case of multiple-floor facilities, on each
(9) The form must use at least twelve point typeface or it
must accommodate the needs of those with limited vision as
(b) A violation of the provisions of this section will
constitute a violation of resident rights. The Department of
Health and Human Resources shall impose a civil penalty of no more
than one thousand dollars, payable to the Department, upon any
person who violates the provisions of this section. Each day a
violation continues shall constitute a separate violation.
§16-5C-5b. Family council rights.
(a) No licensed skilled nursing facility or intermediate care
facility may prohibit the formation of a family council, and when
requested by a member of the resident?s family or the resident?s
representative, the family council shall be allowed to meet in a
common meeting room of the facility at least once a month during
mutually agreed upon hours.
(b) The facility shall inform family members upon the admission of a resident of their right to form a family council.
The facility may not deny a family council the opportunity to
accept assistance from an organization or individual outside of the
(c) Facility policies on family councils may not limit the
rights of residents, family members, and family council members to
meet independently with outside persons including members of
nonprofit or governmental organizations or with facility personnel
during nonworking hours.
(d) Family councils shall also be provided adequate space on
a prominent bulletin board or other posting area for the display of
meeting notices, minutes, newsletters or other information
pertaining to the operation of family councils.
(e) The facility may not prevent or interfere with a family
council receiving outside correspondence which is addressed to the
council. Family council mail shall be delivered unopened to the
governing body or contact person of the council.
(f) Staff or visitors may attend family council meetings at
the group?s invitation.
(g) If requested by the council, the facility shall provide a
designated staff person who shall be responsible for providing
assistance to the family, and for responding to written requests
that result from family council meetings.
(h) The facility shall consider the views and act upon the grievances and recommendations of the family council concerning
proposed policy and operational decisions affecting residents' care
and life at the facility.
(i) The facility shall respond in writing to written requests
or concerns of a family council within five working days.
(j) When a family council exists, the facility shall provide
notice of the family council's existence in at least a quarterly
mailing. During the admission process, the facility shall also
inform family members or representatives of new residents, who are
identified on the admissions agreement or in the resident?s
records, of the existence of a family council. The notice shall
include the time, place and date of the next scheduled council
meeting and the person to contact regarding involvement in the
(k) No facility may willfully interfere with the formation,
maintenance or promotion of a family council. The willful
interference with a family council includes, but is not limited to,
discrimination or retaliation in any way against an individual as
a result of his or her participation in a family council or the
willful scheduling of facility events that conflict with previously
scheduled family council meetings.
(1) A violation of the provisions of this section constitutes
a violation of resident rights. The Department of Health and Human
Resources shall impose a civil penalty of no more than one thousand dollars payable to the Department, upon any person who violates the
provisions of this section. Each day a violation continues shall
constitute a separate violation.
NOTE: The purpose of the bill is require nursing homes to
publicly post staffing information and to, additionally, grant
certain rights to family councils. It requires nursing homes to
post, each shift, the names of licensed and unlicensed staff with
direct care responsibilities. It establishes the type of
information to be provided and the manner in which it must be
posted. The bill grants privacy and organizational rights to
family councils and requires nursing homes to respond to a
council's concerns and questions regarding facility administrative
decisions which affect the lives of residents in the facility. The
bill also sets forth resident?s rights violations while including
civil penalties for noncompliance.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
Sections 5a and 5b are new; therefore, strike-throughs and
underscoring have been omitted.