H. B. 2401
(By Delegates Compton, Kiss, Petersen,
Gallagher, Douglas and Leach)
(Originating in the Committee on Health and Human Resources)
[February 22, 1995]
A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article five-m, relating to
the home care service licensure act; short title; definitions;
licensure; exceptions; denial, suspension or revocation of
licenses; notice, hearings and appeals; violations and
criminal penalties; provision for injunction; establishing
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article five-m, to read as
ARTICLE 5M. HOME CARE SERVICES LICENSURE ACT.
§16-5M-1. Purpose and short title.
This article shall be known as the "Home Care Services
Licensure Act." The purpose of the act is to promote the health, safety and adequate care of patients or clients of home care
agencies. It is also the purpose of the act to assure quality of
home care through the establishment, review and enforcement of
rules, the setting of minimum standards in the establishment,
maintenance and operation of home care services and agencies and
periodic inspection of such agencies. It is also the purpose of
this act to protect the rights of patients and clients to
participate in their home care decisions, including, but not
limited to: (1) Consumer choice and self-determination; (2) rights
of privacy and confidentiality; and (3) the right to be treated
with dignity and respect.
(a) "Agency" means an administrative unit that is responsible
financially and legally.
(b) "Branch office" means a location or site from which a home
care agency provides services within a portion of the total
geographic area served by the parent agency. The term includes an
office that is part of a home care agency that is sufficiently
accessible to share administrations, supervision and services in a
manner that renders it unnecessary for the branch independently to
meet the requirements of this article as a home care agency.
(c) "Bylaws" means a set of rules adopted by the home care
agency for governing the agency's operation.
(d) "Department" means the West Virginia department of health
and human resources.
(e) "Clinical note" means a dated written notation by a member of the home care service team of a single contact with a patient or
client which is a summary of facts about care during a given period
of time which contains a description of signs and symptoms,
service, treatment or medication given, the patient's or client's
reaction and changes in physical or emotional condition.
(f) "Home care agency" means a Class I or Class II home care
(g) "Class I home care agency" means an organization or part
thereof, staffed and equipped to provide private duty home care or
skilled nursing and at least one of the following services:
Physical therapy, occupational therapy, speech pathology, medical,
social or home health aide services intended for the aged,
disabled, ill or infirm on a part-time or intermittent basis in
their places of residence which is exclusive of services provided
by licensed hospices.
(h) "Class II home care agency" means any organization or part
thereof exclusive of Class I home care agencies and hospice
agencies, which supplies, arranges or refers personnel to provide
home care services for which that organization receives a fee,
consideration or compensation of any kind. The term includes, but
is not limited to: (1) Homemaker or home care aide providers; (2)
companion care providers; (3) registry services; (4) intravenous
therapy providers; (5) in-home dialysis providers; (6) durable
medical equipment providers who offer an ongoing complementary or
billable service in conjunction with providing any equipment; and
(7) government departments or contracted agencies, or both, such as, but not limited to, area agencies on aging, senior centers,
mental health centers, case management agencies which provide
direct home care or habilitative or rehabilitative services. The
term does not include: (1) Hospice providers, who are already
licensed in West Virginia; (2) volunteer providers or individuals
who provide a home care service without a contract or other
business relationship with a Class I or Class II home care agency;
or (3) services which are provided under a written contract with a
licensed home care agency.
(i) "Home care aide" means an individual who:
(1) Has completed a program of training consistent with
standards established by the department and has demonstrated
competence in each area of responsibility, or is a certified
nursing assistant; and
(2) Who assists patients or clients with home management and
environmental services such as housekeeping and homemaker services,
and assists patients or clients with nonmedically directed personal
care, including, but not limited to, assistance with
self-administered medications, feeding, assistance with ambulation,
bathing, hair care and grooming, dressing, toileting, transfer
activities, observation of medications, special diets, respite and
companion care, activities of daily living, instrumental activities
of daily living and appropriate patient or client teaching
consistent with training. Home care aides shall for all purposes
be considered employees of the home care agency and not independent
(j) "Home health aide" means:
(1) An individual who has met the requirements of the federal
health care financing administration's medicare program Home Health
Agencies: Condition of Participation (42 CFR part 484) Personnel
Qualifications "Home Health Aides" (42 CRF, part 484.4) and who
assists the patient or client with home management activities and
medically directed personal care; and
(2) Is competent in the following areas:
(A) Communication skills;
(B) Observation, reporting and documentation of patient or
client status and the care of services furnished;
(C) Reading and recording temperature, pulse and respiration;
(D) Basic infection control, including universal precautions;
(E) Basic elements of body functioning and changes in body
function that must be reported to an aide's supervisor;
(F) Maintenance of a clean, safe and healthy environment;
(G) Recognizing emergencies and knowledge of emergency
(H) The physical, emotional and developmental needs of and
ways to work with the populations served by the home health agency,
including the need to respect the patient, his or her privacy and
his or her property;
(I) Appropriate and safe techniques in personal hygiene and
grooming that include:
(i) Bed bath;
(ii) Sponge, tub or shower bath;
(iii) Shampoo in sink, tub or bed;
(iv) Nail, skin and hair care;
(v) Oral hygiene;
(J) Toileting and elimination.
(K) Safe transfer techniques and ambulation;
(L) Normal range of motion and positioning;
(M) Adequate nutrition and fluid intake;
(N) Assistance in the administration of self-administered
(O) Other tasks which the home care agency may choose to have
the home health aide perform within the scope of the aide's
(3) Home health aides shall for all purposes be considered
employees of the home care agency and not independent contractors.
(k) "Home management and medically directed personal care"
means all duties of the home care aide in addition to those
delineated under a medically directed plan of care, including:
Nonsterile wound care; assistance with self-administered
medications; assistance with prescribed exercises; rehabilitation
activities; simple procedures; help with assisting devises; and
appropriate patient or client instruction within a scope of a home
health aide's training.
(l) "Hospice agency" means a private or public agency or
organization licensed in West Virginia under the hospice licensing
act as set forth in article five of this chapter for administration
or provision of hospice care services to terminally ill persons in the persons' temporary or permanent residences by using an
interdisciplinary team, including, at a minimum, persons qualified
to perform nursing, social work, the general practice of medicine
or osteopathy and pastoral or spiritual counseling. No hospice
agency may be considered a home care service agency under this act.
(m) "Licensed practical nurse" means a person who is currently
licensed in this state as a licensed practical nurse. Licensed
practical nurses shall for all purposes be considered employees and
not independent contractors.
(n) "Occupational therapist" means a person who is currently
licensed in the state of West Virginia as an occupational
(o) "Occupational therapy assistant" means a person who is
currently licensed in this state as an occupational therapy
assistant. Occupational therapy assistants shall for all practical
purposes be considered employees and not independent contractors.
(p) "Part-time or intermittent service" means services which
are provided for less than eight hours a day or less than forty
hours a week.
(q) "Pharmacist" means a person who is currently licensed in
this state as a pharmacist.
(r) "Physical therapist" means a person who is currently
licensed in this state as a physical therapist.
(s) "Physical therapist assistant" means a person who is
currently licensed in this state as a physical therapist assistant.
Physical therapist assistants shall for all practical purposes be considered employees and not independent contractors.
(t) "Physician" means a doctor of medicine or doctor of
osteopathy who holds a current and valid license to practice
(u) "Registered nurse" means a person currently licensed in
this state to use the title registered professional nurse.
(v) "Registry services" means any organization or part thereof
which exists, in whole or in part, to match, place or supply a
professional or paraprofessional care-giver with a patient or
client for the purposes of providing in-home care to the patient or
client, including, but not limited to, support services, attendant
care services, custodial care services, nursing services or therapy
services. The term does not include professional nursing
registries which exist to refer registered nurses to patients or
clients for providing in-home care and which do not maintain
individual care records, do not coordinate or monitor care,
determine charges for services or bill patients or clients for
(w) "Secretary" means secretary of the West Virginia
department of health and human resources.
(x) "Skilled nursing services" means a plan of nursing and
services which requires specialized knowledge of its aspects. It
is a comprehensive selection of nursing services provided by or
under the direction of a registered nurse which is based upon
patient assessment consistent with a physician's directed plan of
(y) "Social worker" means a person who is currently licensed
in this state as a social worker.
(z) "Speech pathologist" means a person who is currently
licensed in this state as a speech pathologist.
(aa) "Speech audiologist" means a person who is currently
licensed in this state as a speech audiologist.
(bb) "Subdivision" means a component of a multifunction health
agency, such as the home care department of a hospital or the
nursing division of a health department, which provides services
unique to the subdivision in support of home care agencies.
§16-5M-3. Applications, licensure and certificates of need;
inspections; exemptions; fees; license renewals;
(a) No person, partnership, association or corporation or any
governmental unit or any division, department, board or agency
thereof may obtain a Class I license pursuant to this article
unless they have been granted a certificate of need as defined in
article two of this chapter.
(b) No person, partnership, association or corporation, or any
governmental unit or any division, department, board or agency
thereof may provide Class I or Class II home care services without
first obtaining a license from the West Virginia department of
health and human resources in accordance with the provisions of
this article and any applicable rules: Provided, That this section
may not prevent any home care service provider which received a
certificate of need, as defined in article two-d of this chapter from operating until such time as the rules required by section
four of this article become effective and the secretary grants or
denies an application for a license filed by the provider:
Provided, however, That any such agency in operation prior to the
effective date of the rules which desires to continue operating as
a home care service provider shall apply for a license under this
article within thirty days after the date the rules become
effective. The home care service provider may continue operation
until the secretary grants or denies an application for the license
filed by the provider.
(c) Hospice agencies licensed in this state are exempt from
the licensing provisions of this article.
(d) Any person, partnership, association or corporation or any
governmental unit or division, department, board or agency thereof,
desiring a license hereunder shall file an application with the
secretary for a Class I or Class II home care license, or both, in
such form as the secretary prescribes. Application forms shall be
accompanied by a fee as determined by the secretary: Provided,
That the fee may not be more than two hundred fifty dollars for a
Class I or Class II home care license. Renewal licenses shall be
accompanied by a fee as determined by the secretary: Provided,
however, That the fee may not be more than one hundred dollars.
All licensing fees shall be deposited in the "Health Facility
Licensing Fund" of the West Virginia department of health and human
resources account within the State treasury and be utilized to
carry out the provisions of this act.
(e) The department shall issue an initial Class I or Class II
license to operate a home care agency after a survey conducted by
the department indicates that the applicant is in substantial
compliance with the requirements set forth herein. The initial
survey shall include an on-site inspection: Provided, That
a home care agency qualified and certified to participate in
the medicare program shall be exempt from the inspection required
by this section: Provided, however, That any such exemption shall
not be construed to exempt such agency from compliance with the
requirements set forth herein. Home care agencies which have been
found by an appropriate governmental agency to be in noncompliance
with applicable medicare standards may lose the exemption provided
by this subsection and may be required to submit to licensure
review for a period of twenty-four months.
(f) The Class I or Class II license issued by the department
shall expire one year from the date of issuance. License renewals
shall expire one year from the date of issuance. Applications for
a license renewal shall be submitted at least sixty days prior to
the expiration date of the license, along with the required renewal
(g) A provisional license may be issued by the secretary when
numerous minor deficiencies or one or more serious and substantial
deficiencies exist which have a substantial impact on operation,
management or provision of services in the event:
(1) The applicant is taking appropriate steps to correct the
deficiencies in accordance with a timetable submitted by the applicant and agreed upon by the department; and
(2) There is no danger to the health or safety of any patient
or client: Provided, That the department may issue a provisional
license for a specific period, not to exceed twelve months.
(h) The current license shall be posted in a conspicuous place
in the home health care agency.
(i) The secretary shall inspect all providers that are subject
to the rules adopted under this article no less than one time
during the term of any license.
§16-5M-4. Denial; suspension; revocation.
(a) The secretary is authorized to deny licensure to any
applicant or suspend or revoke an existing license issued hereunder
if the provisions of this article or any rules made hereunder are
(b) Before a license may be denied, suspended or revoked a
written notice shall be forwarded to the applicant or licensee,
stating the grounds of the action and the date, time and place for
a hearing to contest the action. The hearing date may not be less
than thirty days from the time notice is given. The notice shall
be sent by certified mail, return receipt requested, to the
applicant or licensee at the last known address for the applicant
or licensee. The applicant or licensee may be represented by legal
counsel at the hearing.
(c) If a license is denied or revoked, a new application for
a license shall be considered for reinstatement by the secretary if
evidence is provided that the conditions upon which denial or revocation was based have been corrected. A license shall be
reinstated after inspection has been made and the secretary is
satisfied that the licensee has complied with all provisions of
this article and any rules made hereunder.
(d) The provisions contained in article five, chapter
twenty-nine-a of this code shall govern any hearing required by
(e) Any applicant or licensee may, within thirty days after
receiving notice of the decision, appeal to the circuit court of
Kanawha County for judicial review. Any affected party may appeal
the order of the circuit court to the supreme court of appeals.
§16-5M-5. Violations; penalties; injunctions.
(a) Any person, partnership, association or corporation and
any state or local governmental unit or any division, department,
board or agency thereof which establishes, conducts, manages or
operates a home care service without first obtaining a license as
required herein, or which violates any provisions of this article
or any rule made hereunder, is guilty of a misdemeanor, and, upon
conviction thereof, shall for the first offense be fined not more
than five hundred dollars, or imprisoned in the county or regional
jail for not more than ninety days, or both fined and imprisoned.
For each subsequent offense the fine may be increased to not more
than five thousand dollars, or imprisonment in the county or
regional jail may be increased for not more than an additional
ninety days, or both the increased fine and the increased
imprisonment may be imposed. Each day of a continuing violation after a conviction for any violation shall be considered a separate
(b) Notwithstanding any provision of this code to the
contrary, 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 home care service or any violation
of any provision of this article or any rule made thereunder.
§16-5M-6. West Virginia department of health and human resources
to establish rules.
(a) The secretary, after soliciting the advice from affected
parties, shall promulgate rules in accordance with the provisions
of chapter twenty-nine-a of this code for the licensure of home
care service providers in order to ensure that adequate care,
treatment, service, health, safety and welfare are provided to any
patient or client, that the self-determination of the patient or
client is preserved and to ensure compliance with the provisions of
(b) Rules regulating Class I and Class II licenses shall
address the following:
(a) Management, operation and staffing of home care service
(b) Qualifications, training and supervision of licensed or
certified and nonlicensed or noncertified home care personnel;
(c) Provision and coordination and periodic review of an
intra-agency or interagency, or both, plan of treatment or care;
(d) Maintenance of records related to management, operations
or current services;
(e) Procedure for the development of licensure standards that
take into account utilization and quality of patient or client
care, patient or client rights and self-determination;
(f) Procedures for investigation of complaints;
(g) Reporting of abuse, neglect or misappropriation of
personal funds or property;
(h) Maintenance of written policies and procedures for
volunteers that have direct patient or client contact;
(i) Maintenance of written policies on obtaining regular
reports on patient or client satisfaction; and
(j) Such other requirements as the secretary may determine to