Senate Bill No. 266
(By Senators Walker, Blatnik and Macnaughtan)
[Introduced February 6, 1995; referred to the Committee
on Health and Human Resources; and then to the Committee
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; denial, suspension or revocation of
licenses; violations and criminal penalties; provision for
injunction; and establishing rules.
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
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
(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
(i) "Home care aide" means an individual who has completed
a program of training consistent with standards established by
the department, and who has demonstrated competence in each area
of responsibility, or is a certified nursing assistant 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 contractors.
(j) "Home health aide" means 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.
(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. Home health aides shall be
competent in the following areas:
(1) Communication skills;
(2) Observation, reporting and documentation of patient or
client status and the care of services furnished;
(3) Reading and recording temperature, pulse and
(4) Basic infection control, including universal precautions;
(5) Basic elements of body functioning and changes in body
function that must be reported to an aide's supervisor;
(6) Maintenance of a clean, safe and healthy environment;
(7) Recognizing emergencies and knowledge of emergency
(8) 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;
(9) Appropriate and safe techniques in personal hygiene and
grooming that include:
(A) Bed bath;
(B) Sponge, tub or shower bath;
(C) Shampoo in sink, tub or bed;
(D) Nail, skin and hair care;
(E) Oral hygiene;
(F) Toileting and elimination.
(10) Safe transfer techniques and ambulation;
(11) Normal range of motion and positioning;
(12) Adequate nutrition and fluid intake;
(13) Assistance in the administration of self-administered
(14) Other tasks which the home care agency may choose to
have the home health aide perform within the scope of the aide's
Home health aides shall for all practical purposes be
considered employees of the home care agency and not independent
(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
(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 services.
(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
§16-5M-3. Home care service providers to obtain license;
application; fees and inspections.
(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 under this article
unless they have been granted a certificate of need as defined in
article two of this chapter.
(b) Deemed status. -- A home care agency qualified and
certified to participate in the medicare program shall be exempt
from inspection but shall comply 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 this consideration and be
required to submit to licensure review for a period of
(c) 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. 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. Hospice agencies, licensed in
this state, are exempt from the licensing provisions of this
(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 to be set 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 set by the secretary:
Provided, however, That the fee may not be more than one hundred
dollars. All licensing fees shall go to the West Virginia
department of health and human services 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 will include an on-site inspection, except for those
agencies granted deemed status under section three herein.
(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 fee.
(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.
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 violated.
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.
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.
The provisions contained in article five, chapter
twenty-nine-a of this code shall govern any hearing required by
Any applicant or licensee who is dissatisfied with the
decision of the secretary after the hearing required herein, may,
within thirty days after receiving notice of the decision, appeal
to the circuit court of Kanawha County for judicial review.
Any party may appeal the circuit court's decision 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 offense.
(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.
The secretary after soliciting the advice from affected
parties, shall make rules 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 this
article. 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
intraagency 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 be appropriate.
NOTE: The purpose of this bill is to create the home care
service licensure act. The bill sets up a new article regulating
home care service providers that includes a purpose provision;
definitions; provisions applicable to licensure requirements and
fees; provisions concerning the denial, suspension or revocation
of licenses; criminal penalties; provisions relating to
petitioning for injunctions; and the establishment of rule-making
This article is new; therefore, strike-throughs and
underscoring have been omitted.