H. B. 4102
(By Delegates Compton, Hutchins, Caputo,
Fleischauer, Manuel, Rowe and Leach)
[Introduced January 28, 1998; referred to the
Committee on Health and Human Resources then Government
Organization.]
A BILL to amend and reenact sections three and seven, article
five-l, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all
relating to long-term care ombudsmen; regional long-term
care ombudsmen; qualifications; duties; training;
certification; definitions; defining a pecuniary interest in
the provision of long-term care; modifying the prohibition
against certain prior employment in the field of long-term
care of regional long-term care ombudsmen; and expanding
the qualifications for regional long-term care ombudsmen.
Be it enacted by the Legislature of West Virginia:
That sections three and seven, article five-l, chapter
sixteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 5L. LONG-TERM CARE OMBUDSMAN PROGRAM.
§16-5L-3. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) "Government agency" means any department, division, office, bureau, board, commission, council, authority, or any
other agency or instrumentality created by the state or political
subdivision thereof or to which the state is a party or by any
county or municipality which is responsible for the regulation,
visitation, inspection, or supervision of long-term care
facilities or which provides services to residents or long-term
care facilities;
(b) "Long-term care facility" means any nursing home,
personal care home, or residential board and care home as defined
in section two, article five-c of this chapter; nursing homes
operated by the federal government or the state government;
extended care facilities operated in connection with hospitals;
and any similar 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
for consideration, for the express and implied purpose of
providing accommodations and care or personal assistance to one
or more persons who are ill or otherwise incapacitated or are
dependent upon the services of others by reasons of physical or
mental impairment and who are not related within the degree of
consanguinity of second cousin to the owner or manager of the
institution, residence or place;
(c) "Long-term care ombudsman volunteer" or "ombudsman
volunteer" means any uncompensated individual who performs the
duties enumerated under section eight of this article:
Provided,
That the individual has received appropriate certification as set
forth in section nine of this article;
(d) "Pecuniary interest" means holding a financial interest
in or deriving financial benefit from the provision of long-term
care, but does not include employment in the long-term care
industry or in the home health care industry;
(d) (e) "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;
(e) (f) "Regional long-term care ombudsman" means any paid
staff of a designated regional long-term care ombudsman program
who has obtained appropriate certification from the state
commission on aging and meets the qualifications set forth in
section seven of this article;
(f) (g) "Resident" means an individual living in a nursing
home, personal care home, a residential board and care home, or
any long-term care facility as defined in subsection (b) of this
section, or who has lived in such a setting, or who has made
application to live in such a setting: Provided,
That nothing in
this article shall may be construed to give a long-term care
ombudsman the right to obtain the waiting list of a long-term
care facility;
(g) (h) "State long-term care ombudsman" means an individual
who meets the qualifications of section five of this article and
who is employed by the state commission on aging to implement the
state long-term care ombudsman program as set forth in this
article; and
(h) (i) "Guardian" means a person lawfully invested with the
power and charged with the duty of taking care of another person
and managing the property and rights of another person who for
some peculiarity of status or defect of age, understanding or
self control is considered incapable of administering his or her
own affairs, to include committees or other references under the
code.
§16-5L-7. Regional long-term care ombudsmen; qualifications;
duties; training; certification.
(a) Each regional long-term care ombudsman program shall
employ one or more regional long-term care ombudsmen to effect
the purposes of this article. The regional long-term care
ombudsman shall have either: (1) At least a four-year degree in
gerontology, social work, health, or a related field and
demonstrated experience in one of the following areas: (1) (A)
The field of aging; (2) (B) health care or social service
programs; (3) (C) community programs; and (4) or (D) long-term
care issues; or (2) at least a four-year degree in any field and
at least three years of experience in gerontology, social work,
health or a related field. Provided,
That Persons employed in
a designated regional long-term care ombudsman program on the
date of enactment of this article may be given a waiver from
these requirements provided that within one year from the date of
enactment of this article they enter into a program leading to a
degree in gerontology, social work, health or a related field or
complete fifty hours of continuing education units in
gerontology, social work, health or a related field every two calendar year periods. The regional long-term care ombudsman
shall participate in ongoing training programs related to his or
her duties or responsibilities. The regional long-term care
ombudsman may not have been employed within the past two years
prior to the date of his or her employment under this section by
a long-term care facility or by any association of long-term
care facilities. If a regional long-term care ombudsman has been
employed within the past two years prior to the date of his or
her employment under this section by a long-term care facility,
or by any organization or corporation that directly or indirectly
regulates, owns or operates a long-term care facility, that
ombudsman may not act with the authority of a regional long-term
care ombudsman in the facility of prior employment or in any
other facility regulated, owned or operated by the same ownership
as the facility of prior employment.
(b) Neither the regional long-term care ombudsman nor any
member of his or her immediate family may have, or have had
within the two years preceding his or her employment under this
section, any pecuniary interest in the provision of long-term
care. For the purposes of this section, the term "immediate
family" shall mean the spouse, children, natural mother, natural
father, natural brothers or natural sisters of the regional
long-term care ombudsman.
(c) The duties of the regional long-term care ombudsman
shall include, but are not limited to, the following:
(1) Regularly monitoring long-term care facilities and
investigating complaints filed on behalf of a resident, or filed on the regional long-term care ombudsman's own initiative,
relating to the health, safety, welfare and rights of such
residents, in accordance with complaint investigation procedures
developed by the state long-term ombudsman care program:
Provided,
That nothing in this section shall be construed as to
grant a regional long-term care ombudsman the right of entry to
a long-term care facility's drug rooms or to treatment rooms
occupied by a resident unless prior consent has been obtained
from the resident;
(2) Monitoring the development and implementation of
federal, state and local laws, regulations and policies with
respect to long-term care facilities;
(3) Training certified volunteers in accordance with the
training and certification program developed by the state
long-term care ombudsman program;
(4) Encouraging, cooperating with, and assisting the
development and operation of referral services which can provide
current, valid and reliable information on long-term care
facilities and alternatives to institutionalization to persons in
need of these services and the general public;
(5) Submitting reports as required by the state long-term
care ombudsman program; and
(6) Other duties as mandated by the Older Americans Act of
1965, as amended.
(d) The state long-term care ombudsman shall develop and
implement procedures for training and certification of regional
long-term care ombudsmen. Regional long-term care ombudsmen who satisfactorily complete the training requirements shall be
certified by the state commission on aging and shall be given
identification cards which shall be presented to employees of a
long-term care facility upon request. No regional long-term care
ombudsman may investigate any complaint filed with the West
Virginia long-term care ombudsman program unless such person has
been certified by the state commission on aging. Consistent with
the provisions of this article and any rules and regulations
promulgated pursuant to section twenty-one, certified regional
long-term ombudsmen shall be representatives of the state
long-term care ombudsman program.
NOTE: The purpose of this bill is to modify the prohibition
against certain prior employment in the field of long-term care
of regional long-term care ombudsmen; and to expand the
qualifications for regional long-term care ombudsmen.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.