Senate Bill No. 531
(By Senator Unger)
[Passed April 7, 2005; in effect ninety days from passage.]
AN ACT to amend and reenact §16-5I-1, §16-5I-2, §16-5I-3, §16-5I-4,
§16-5I-5 and §16-5I-6 of the Code of West Virginia, 1931, as
amended, all relating to the Hospice Licensure Act; requiring
compliance with the Centers for Medicare and Medicaid
Services; and penalties.
Be it enacted by the Legislature of West Virginia:
That §16-5I-1, §16-5I-2, §16-5I-3, §16-5I-4, §16-5I-5 and
§16-5I-6 of the Code of West Virginia, 1931, as amended, be amended
and reenacted, all to read as follows:
ARTICLE 5I. HOSPICE LICENSURE ACT.
§16-5I-1. Purpose and short title.
This article shall be known as the Hospice Licensure Act. The
purpose of this Act is to establish licensing requirements for
hospices. It is the intent of the Legislature to establish,
promote and make available within this state a comprehensive
hospice care program for the treatment of physical, emotional and
mental symptoms of terminal illness.
(a) "Bereavement services" means support services designed to
assist individuals to experience, respond emotionally to and adjust
to the death of another person.
(b) "Hospice" means a coordinated program of home and
inpatient care provided directly or through an agreement under the
direction of an identifiable hospice administration which provides
palliative and supportive medical and other health services to
terminally ill individuals and their families. Hospice utilizes a
medically directed interdisciplinary team. A hospice program of
care provides care to meet the physical, psychological, social,
spiritual and other special needs which are experienced during the
final stages of illness and during dying and bereavement.
(c) "Interdisciplinary team" means the hospice patient and the
patient's family, the attending physician and the following hospice
personnel: Physician, nurse, social worker, clergy and trained
volunteer. Providers of supportive services such as mental health,
pharmaceutical and any other appropriate allied health services may
also be included on the team as the needs of the individual
(d) "Palliative services" means treatment directed at
controlling pain, relieving other symptoms and focusing on the
special needs of the individual and family as they experience the
stress of the dying process, rather than treatment designed for
investigation and intervention for the purpose of cure or prolongation of life.
(e) "Terminally ill" means that an individual has a medical
prognosis that his or her life expectancy is six months or less or
another length of time determined by the centers for medicare and
medicaid services and designated in federal hospice regulations.
(f) "Secretary" means the Secretary of the West Virginia
Department of Health and Human Resources. The Secretary may define
in regulation any term or phrase used in this article which is not
§16-5I-3. Hospices to obtain license; application; fees and
(a) No person, partnership, association or corporation or any
governmental unit or any division, department, board or agency
thereof may operate a hospice without first obtaining a license
from the Secretary in accordance with the provisions of this
article and the rules lawfully promulgated hereunder.
(b) Any person, partnership, association or corporation or any
governmental unit or any division, department, board or agency
thereof desiring a license hereunder shall file with the Secretary
an application in such form as the Secretary shall prescribe and
furnish accompanied by a fee to be determined by the Board of
Health, based upon the number of persons served by the hospice.
The Secretary shall inspect the hospice prior to issuing a license.
Upon receipt and review of an application for license, the
Secretary shall issue a license if the hospice is in compliance with the provisions of this article and with the rules lawfully
promulgated hereunder. The license is not transferable or
(c) A license shall expire one year from the date of issuance.
Sixty days prior to the expiration date, an application for renewal
shall be submitted on forms furnished by the Secretary. A license
shall be renewed if the Secretary determines that the applicant is
in compliance with this article and with all rules promulgated
(d) The Secretary or his or her designee shall inspect all
hospices that are subject to rules adopted pursuant to this article
periodically and at least as often as required by the Centers for
Medicare and Medicaid Services in order to determine compliance
with the provisions of this article and with rules adopted
hereunder, and regulations promulgated by the Centers for Medicare
and Medicaid Services.
§16-5I-4. Suspension; revocation.
(a) The Secretary is authorized to suspend or revoke a license
issued hereunder if the provisions of this article or of the rules
(b) Before any such license is suspended or revoked, however,
written notice shall be given the licensee, stating the grounds of
the complaint, and the date, time and place set for the hearing on
the complaint, which date shall not be less than thirty days from
the time notice is given. Such notice shall be sent by registered mail to the licensee at the address where the hospice concerned is
located. The licensee shall be entitled to be represented by legal
counsel at the hearing.
(c) If a license is revoked as herein provided, a new
application for a license shall be considered by the Secretary if,
when and after the conditions upon which revocation was based have
been corrected and evidence of this fact has been furnished. A new
license shall then be granted after proper inspection has been made
and all provisions of this article and rules promulgated hereunder
have been satisfied.
(d) All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern any hearing
authorized and required by the provisions of this article and the
administrative procedure in connection with and following any such
hearing, with like effect as if the provisions of said article five
were set forth in extenso in this section.
(e) Any applicant or licensee who is dissatisfied with the
decision of the Secretary as a result of the hearing provided in
this section may, within thirty days after receiving notice of the
decision, appeal to the circuit court, in term or in vacation, of
Kanawha County for judicial review of the decision.
(f) The court may affirm, modify or reverse the decision of
the Secretary and either the applicant or licensee or the Secretary
may appeal from the court's decision to the Supreme Court of
§16-5I-5. Secretary of Health and Human Resources to establish
The Secretary of the Department of Health and Human Resources
may promulgate rules in accordance with the provisions of chapter
twenty-nine-a of this code for the licensure of hospice programs to
ensure adequate care, treatment, health, safety, welfare and
comfort of hospice patients. Such rules shall include, but not be
(a) The qualifications and supervision of licensed and
(b) The provision and coordination of inpatient care and in-
home treatment services, including the development of a written
plan of care;
(c) The management, operation, staffing and equipping of the
(d) The clinical and business records kept by the hospice;
(e) The procedures for the review of utilization and quality
of patient care; and
(f) Such other requirements as the Secretary determines to be
§16-5I-6. Violations; penalties; injunction.
(a) Any person, partnership, association or corporation and
any local governmental unit or any division, department, board or
agency thereof which establishes, conducts, manages or operates a
hospice without first obtaining a license therefor as herein provided, or which violates any provisions of this article or any
rule or regulation lawfully promulgated thereunder, shall be
assessed a civil penalty by the Secretary not to exceed fifty
dollars for each violation. Each day of continuing violation after
conviction shall be considered a separate violation.
(b) Notwithstanding the existence or pursuit of any other
remedy, the Secretary may, in the manner provided by law, maintain
an action in the name of the state for an injunction against any
person, partnership, association, corporation or any governmental
unit or any division, department, board or agency thereof to
restrain or prevent the establishment, conduct, management or
operation of any hospice or violation of any provisions of this
article or any rule or regulation lawfully promulgated thereunder
without first obtaining a license therefor in the manner