H. B. 2183
(By Delegates Tillis, Kelley, Linch,
Kuhn, Fragale and Prunty)
[Introduced February 20, 1997; referred to the
Committee on Industry and Labor then Finance.]
A BILL to amend and reenact sections four, five, seven and nine,
article five-c, chapter sixteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to nursing, personal and residential care homes;
bonds of employees; background checks of employees; payment
of certain employees according to state minimum wage laws;
inspections; and civil penalties.
Be it enacted by the Legislature of West Virginia:
That sections four, five, seven 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 to read
as follows:
ARTICLE 5C. NURSING AND PERSONAL CARE HOMES AND RESIDENTIAL BOARD AND CARE HOMES.
§16-5C-4. Administrative and inspection staff.
The director may, at such time or times as he may deem
necessary, employ such administrative employees, inspectors or
other persons as may be necessary to properly carry out the
provisions of this article. All employees of the department
shall be members of the state civil service system. Such
inspectors and other employees as may be duly designated by the
director shall act as the director's representatives and, under
the direction of the director, shall enforce the provisions of
this article and all duly promulgated regulations rules of the
board of health and, in the discharge of official duties, shall
have the right of entry into any place maintained as a nursing
home or personal care home and shall determine if the patients
are receiving proper care.
§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 rules
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 States
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; and (iii) information relating to all employees
which information shall also include background checks on all
personnel, including management, medical and nursing, aides,
orderlies and support personnel for arrests, convictions or other criminal charges: Provided, That failure to provide this
information or to meet this requirement shall result in a penalty
of one thousand dollars for each violation;
(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, including the requirement that each such facility
pay its aides, orderlies and support personnel wages which at the
least conform to the requirements of article five-c, chapter
twenty-one of this code;
(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
rules 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
rules 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 rules 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.
§16-5C-7. Cost disclosure; surety for patient funds.
(a) Each nursing home and personal care home shall disclose
in writing to all prospective patients a complete and accurate
list of all costs which may be incurred by them; and such
facility shall display or cause to be displayed copies of such
list in conspicuous places therein. Patients may not be liable
for any cost not so disclosed.
(b) If the facility handles any money for patients within
the facility, the licensee or his or her authorized
representative shall give a bond in an amount consistent with
this subsection and with such surety as the director shall
approve. Such bond shall be upon condition that the licensee
shall hold separately and in trust all patients' funds deposited
with the licensee, shall administer the funds on behalf of the
patient in the manner directed by the depositor, shall render a true and complete account to the depositor and the director when
requested, and at least quarterly to the patient, and upon
termination of the deposit, shall account for all funds received,
expended and held on hand. The licensee shall file a bond in a
sum to be fixed by the director based upon the magnitude of the
operations of the applicant, but which sum may not be less than
two thousand five hundred dollars.
Every person injured as a result of any improper or unlawful
handling of the money of a patient of a facility may bring an
action in a proper court on the bond required to be posted by the
licensee pursuant to this subsection for the amount of damage
suffered as a result thereof to the extent covered by the bond.
Whenever the director determines that the amount of any bond
which is filed pursuant to this subsection is insufficient to
adequately protect the money of patients which is being handled,
or whenever the amount of any such bond is impaired by any
recovery against the bond, the director may require the licensee
to file an additional bond in such amount as necessary to
adequately protect the money of patients being handled.
The provisions of this subsection may not apply if the
licensee handles less than twenty-five dollars per patient and
less than five hundred dollars for all patients in any month.
Notwithstanding any provision of this section or article to
the contrary, each nursing home and personal care home, the
licensee or his or her authorized representative shall give an
additional bond covering all employees of the nursing home or
personal care home in an amount consistent with this subsection
and with such surety as the director shall approve. The bond
shall be upon condition that the licensee shall be responsible
for theft, damage or injury to patients for negligence, abuse or
any other negligent or willful act.
§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 issue
an 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 rules promulgated thereunder, and shall determine if
the patients are receiving proper care. All facilities shall
comply with regulations rules of the state fire commission. The
state fire marshal, by his or her 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.
NOTE: This bill requires all employees of nursing, personal and residential care homes to be bonded. It requires background
checks of employees; inspections to determine that patients are
being properly cared for; and provides civil penalties for
violations. The bill also requires all such facilities to pay
its aides, orderlies and support personnel according to the state
minimum wage laws.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.