H. B. 2742
(By Delegate Linch)
[Introduced January 10, 1996; referred to the
Committee on Health and Human Resources.]
A BILL to amend and reenact sections two and five, article
five-c, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
the staffing standards at nursing or personal care facility.
Be it enacted by the Legislature of West Virginia:
That sections two and five, article five-c, chapter sixteen
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted 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 the department 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 by
or 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;
(m) The term "unlicensed nursing personnel" means the
persons who perform only those functions for which a license is
not required under this article.
The director may define in regulations any term used herein
which is not expressly defined.
§16-5C-5. Rules; minimum standards for facilities; rating of
facilities.
(a) All rules and regulations shall be approved by the board
of health and promulgated in the manner provided by the
provisions of article three, chapter twenty-nine-a of this code.
The board of health shall adopt, amend or repeal such rules and
regulations as may be necessary or proper to carry out the
purposes and intent of this article and to enable the director to
exercise the powers and perform the duties conferred upon the
director by this article.
(b) The board of health shall promulgate regulations
establishing minimum standards of operation of facilities
including, but not limited to, the following:
(1) Administrative policies, including: (i) An affirmative
statement of the right of access to facilities by members of
recognized community organizations and community legal services
programs whose purposes include rendering assistance without charge to patients, consistent with the right of patients to
privacy; and (ii) a statement of the rights and responsibilities
of patients in facilities which prescribe, as a minimum, such a
statement of patients' rights as included in the United State
department of health, education and welfare regulations, in force
on the effective date of this article, governing participation of
intermediate care facilities in the medicare and medicaid
programs pursuant to titles eighteen and nineteen of the Social
Security Act;
(2) Minimum numbers and qualifications of personnel,
including management, medical and nursing, aides, orderlies and
support personnel, according to the size and classification of
the facility: Provided, That all facilities shall meet the
following standards:
(i) Employ nursing personnel sufficient to provide
continuous twenty-four hour nursing care and to provide services
adequate to meet the needs of each patient in the facility;
(ii) Employ unlicensed nursing personnel sufficient to
maintain a patient to unlicensed nursing personnel ratio of not
more than eight to one during any morning shift; a patient to
unlicensed nursing personnel ratio of not more than ten to one
during any afternoon shift; and a patient to unlicensed nursing
personnel ratio of not more than fifteen to one during any
nighttime shift;
(iii) A prohibition on the performance of nursing care by a
person employed to provide basic services such as food
preparation, housekeeping, laundry or maintenance; and
(iv) A prohibition on the performance of basic services such
as food preparation, housekeeping, laundry or maintenance by a
person employed as a member of the nursing staff, except in such
instances when such duties are approved by the department and
required by the occurrence of a natural disaster or other
emergency.
(3) Safety requirements;
(4) Sanitation requirements;
(5) Protective and personal services to be provided;
(6) Dietary services to be provided;
(7) Maintenance of health records;
(8) Social and recreational activities to be made available;
and
(9) Such other categories as the board of health determines
to be appropriate to ensure patient's health, safety and welfare.
(c) The board of health shall include in its regulations
detailed standards for each of the categories of standards
established pursuant to subsections (b) and (d) of this section,
and shall classify such standards as follows: Class I standards
are standards the violation of which, the board of health
determines, would present either an imminent danger to the health, safety or welfare of any patient or a substantial
probability that death or serious physical harm would result;
Class II standards are standards which the board of health
determines have a direct or immediate relationship to the health,
safety or welfare of any patient, but which do not create
imminent danger; Class III standards are standards which the
board of health determines have an indirect or a potential impact
on the health, safety or welfare of any patient.
(d) The board of health shall establish:
(1) Standards grouped into broad general categories
including, but not limited to, nursing services, dietetic
services, medical services, the physical facility and patient
rights. Standards within each category shall be assigned a
numerical value based on its classification according to
subsection (c) of this section to represent full compliance with
the standard. The board of health shall also determine numerical
values for a standard to represent an acceptable level or levels
of partial but substantial compliance with the standard, if
applicable.
(2) A range of values for each category based on the values
for individual standards to represent full compliance and various
levels of acceptable partial but substantial compliance with the
category. A facility must attain an acceptable substantial level
of compliance for each and every individual category to be deemed in substantial compliance with this article and the regulations
promulgated hereunder.
(3) Standards for which extra numerical credit may be
earned. Such extra credit shall not be used to counterbalance
unacceptable levels of compliance with other standards, but may
be used to raise a score where the facility is already in partial
compliance.
(e) Not later than the first day of March, one thousand nine
hundred eighty-nine, the board of health shall establish a system
of rating facilities, as part of the licensing procedure, in
accordance with the criteria established pursuant to this
section. Such system shall include four rating categories
entitled, from the highest to lowest, "A," "B," "C" and "F." A
rating of "F" shall be assigned to those facilities whose
performance is not in substantial compliance with this article
and regulations promulgated hereunder, and shall be the basis for
issuance of a provisional license pursuant to subsection (d),
section six of this article, or the limitation, suspension,
revocation or denial of a license. The rating assigned to each
facility shall be on the basis of its immediately prior
inspection, and shall be deemed a part of the results and
findings of that inspection, and shall be included on the license
issued to the facility pursuant to section six of this article.
NOTE: The purpose of this bill is to improve the quality of
long-term care provided by nursing home facilities by setting
minimum staffing levels for licensed and unlicensed nursing
personnel.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.