ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 308
(Senator Manchin, original sponsor)
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[Passed March 12, 1994; in effect from passage ninety days.]
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AN ACT to amend and reenact sections two and nine, article five-
c, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact section two, article five-e of said chapter; and to
amend and reenact sections one and two-a, article five-h of
said chapter, all relating to nursing, personal care and
residential board and care homes; amending the definition of
director; amending the definitions of facilities with
respect to the number of persons who may be served by
nursing homes, personal care homes and residential board and
care homes; inserting a definition for "limited and
intermittent nursing care" for licensed facilities;
increasing the minimum number of persons served from three
to four for classification as a nursing home; increasing
from two to three the number of persons who may be served by
a legally unlicensed health care facility; increasing from
three to eight to four to ten the number of persons who may
be served by residential board and care homes; requiring
compliance with requirements of the fire commission;
deleting reference to the requirement that certain
residential board and care homes have a specific type of
sprinkler system; amending the definition of service
provider to include the provision of limited and
intermittent nursing care; eliminating reference to the
residential board and care homes automatic sprinkler system
requirement; requiring legally unlicensed health care
facilities to provide consumers, orally and in writing, with
certain information if limited and intermittent care is
provided by a facility; and requiring residential board and
care homes to comply with regulations of the state fire
commission and requiring the fire marshal to make fire and
safety inspections.
Be it enacted by the Legislature of West Virginia:
That sections two and nine, article five-c, chapter sixteen
of the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be amended and reenacted; that sections two and
five, article five-e of said chapter be amended and reenacted;
and that sections one and two-a, article five-h of said chapter
be amended and reenacted, all to read as follows:
ARTICLE 5C. NURSING AND PERSONAL CARE HOMES AND RESIDENTIAL
BOARD AND CARE HOMES.
§16-5C-2. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) The term "director" means the secretary of thedepartment of health and human resources or his or her designee;
(b) The term "facility" means any nursing home, personal
care home or residential board and care home as defined in
subdivisions (d), (e) and (f) of this section: Provided, That
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 to constitute
a nursing home, personal care home, or residential board and care
home within the meaning of this article. Nothing contained in
this article shall apply to hospitals, as defined under section
one, article five-b of this chapter, or state institutions as
defined under section six, article one, chapter twenty-seven of
this code or section three, article one, chapter twenty-five of
this code, or nursing homes operated by the federal government or
the state government, 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 extended care facilities
operated in conjunction with a hospital;
(c) The term "limited and intermittent nursing care" means
care which may only be provided when the need for such care meets
these factors: (1) The resident requests to remain in the
facility; (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 the normal aging process.
Limited and intermittent nursing care shall only be provided byor under the direct supervision of a registered professional
nurse and in accordance with rules promulgated by the board of
health;
(d) The term "nursing home" 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, on-going nursing care due to physical or mental
impairment, or which provides services for the rehabilitation of
persons who are convalescing from illness or incapacitation;
(e) The term "personal care home" 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 personal assistance and supervision,
for a period of more than twenty-four hours, to four or more
persons who are dependent upon the services of others by reason
of physical or mental impairment 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 shall not be used unless the personal care home has a
backup power generator;
(f) The term "residential board and care home" means any
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
consideration or not, for the express or implied purpose of
providing accommodations and personal assistance and supervision,
for a period of more than twenty-four hours, to four to ten
persons who are not related to the owner or manager by blood or
marriage within the degree of consanguinity of second cousin and
are dependent upon the services of others by reason of physical
or mental impairment or who may require limited and intermittent
nursing care but are capable of self-preservation and are not
bedfast, 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 shall not be
used unless the residential board and care home has a backup
power generator;
(g) The term "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, catheterizations, 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;
(h) The term "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 mental impairment of
the resident;
(i) The term "patient" means an individual under care in a
nursing home;
(j) The term "resident" means an individual living in a
personal care home or a residential board and care home;
(k) The term "sponsor" means the person or agency legally
responsible for the welfare and support of a patient or resident;
(l) The term "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.
The director may define in regulations any term used herein
which is not expressly defined.
§16-5C-9. Inspections.
The director and any duly designated employee or agent
thereof shall have the right to enter upon and into the premises
of any facility for which a license has been issued, for which an
application for license has been filed with the director, or
which the director has reason to believe is being operated or
maintained as a nursing home, personal care home or residential
board and care home without a license. If such entry is refused
by the owner or person in charge of any such facility, the
director shall apply to the circuit court of the county in which
the facility is located or the circuit court of Kanawha County
for a warrant authorizing inspection, and such court shall issuean appropriate warrant if it finds good cause for inspection.
The director, by the director's authorized employees or
agents, shall conduct at least one inspection prior to issuance
of a license pursuant to section six of this article, and shall
conduct periodic unannounced inspections thereafter, to determine
compliance by the facility with applicable statutes and
regulations promulgated thereunder. All facilities shall comply
with regulations of the state fire commission. The state fire
marshal, by his employees or authorized agents, shall make all
fire, safety and like inspections. The director may provide for
such other inspections as the director may deem necessary to
carry out the intent and purpose of this article. If after
investigating a complaint, the director determines that the
complaint is substantiated and that an immediate and serious
threat to a consumer's health or safety exists, the director may
invoke any remedies available pursuant to section eleven of this
article. Any facility 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 of this
article.
ARTICLE 5E. REGISTRATION OF SERVICE PROVIDERS IN LEGALLY
UNLICENSED HEALTH CARE FACILITIES.
§16-5E-2. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) The term "consumer" means an individual who is provided
services, whether or not for a fee, by a service provider, but
consumer does not include a person receiving services provided byanother who is related to him or her or the spouse thereof by
blood or marriage, within the degree of consanguinity of second
cousin. Limited and intermittent nursing care may only be
provided when the need for such care: (1) Arises from the
consumer's desire to remain in the facility; (2) the consumer 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 the
normal aging process. Limited and intermittent nursing care
shall only be provided by or under the direct supervision of a
registered professional nurse and in accordance with rules
promulgated by the secretary of the department of health and
human resources. If limited and intermittent nursing care is
provided in an unlicensed health care facility, the facility
shall: (1) Provide consumers, 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
consumers both orally and in writing of their right to file a
complaint with the aforementioned entities;
(b) The term "director" means the secretary of the
department of health and human resources or his or her designee;
(c) The term "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) The term "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) The term "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
consumers 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 shall not be
used unless the health care facility has a backup power
generator.
§16-5E-5. Inspections; right of entry.
The director 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 consumers therein and the adequacy of
services being provided to them. The director may obtain a
search warrant to inspect those premises that the director hasreason to believe are being used to provide services.
If after investigating a complaint, the director determines
that the complaint is substantiated and that an immediate and
serious threat to a resident's health or safety exists, the
director may petition the circuit court for an injunction, order
of abatement or other appropriate action or proceeding to: (1)
Close the facility; (2) transfer consumers in the facility to
other facilities; or (3) appoint temporary management to oversee
the operation of the facility to assure the health, safety,
welfare and rights of the facility's consumers where there is a
need for temporary management to ensure compliance with the
court's order. Any facility 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.
ARTICLE 5H. RESIDENTIAL BOARD AND CARE HOMES.
§16-5H-1. Definitions.
(a) The term "residential board and care home" means any
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, personal assistance and supervision, for a period
of more than twenty-four hours, to four to ten persons who are
not related to the owner or manager by blood or marriage, within
the degree of consanguinity of second cousin, and who are
dependent upon the services of others by reason of physical or
mental impairment or who may require limited and intermittentnursing care but who are capable of self-preservation and are not
bedfast, 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 shall not be
used unless the residential board and care home has a backup
power generator.
(b) The term "self-preservation" means that a person is, at
least, capable of removing his or her physical self from
situations involving imminent danger, such as fire.
(c) The term "limited and intermittent nursing care" means
care which may only be provided when: (1) The resident desires to
remain in the facility; (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 the normal aging
process. Limited and intermittent nursing care shall only be
provided by or under the direct supervision of a registered
professional nurse and in accordance with rules promulgated by
the secretary of the department of health and human resources.
§16-5H-2a. Fire protection.
All residential board and care homes shall comply with
regulations of the state fire commission. The state fire
marshal, by his or her employees or authorized agents, shall make
regular fire and safety inspections of board and care homes.