H. B. 4613
(By Delegate Hunt)
[Introduced February 27, 1998; referred to the
Committee on Health and Human Resources then Government
Organization.]
A BILL to amend and reenact sections one and two, article five-h,
chapter sixteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, all relating to the
licensure of residential board and care homes; defining
terms.
Be it enacted by the Legislature of West Virginia:
That sections one and two, article five-h, 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 5H. RESIDENTIAL BOARD AND CARE HOMES.
§16-5H-1. Purpose.
It is the policy of this state to encourage and promote the
development and utilization of resources to ensure the effective care and treatment of persons who are dependent upon the services
of others by reason of physical or mental impairment or who may
require limited and intermittent nursing care, but who are
capable of self-preservation and are not bedfast, including those
individuals who qualify for and are receiving services
coordinated by a licensed hospice. Such care and treatment
requires a living environment for such persons which, to the
extent practicable, will approximate a normal home environment.
To this end, the guiding principle for administration of the laws
of the state is that such persons shall be encouraged and
assisted in securing necessary care and treatment in
noninstitutional surroundings. In recognition that for many such
persons effective care and treatment can only be secured from
proprietary and voluntary residential board and care homes, it is
the policy of this state to encourage, promote and require the
maintenance of residential board and care homes so as to ensure
protection of the rights and dignity of those using the services
of such residential board and care homes.
The provisions of this article are hereby declared to be
remedial and shall be liberally construed to effectuate its
purposes and intents.
§16-5H-2. Definitions.
As used in this article, unless a different meaning appears from the context:
(a) "Deficiency" means a statement of the rule and the fact
that compliance has not been established and the reasons
therefor;
(b) "Department" means the state department of health and
human resources;
(c) "Director" means the secretary of the department of
health and human resources or his or her designee;
(d) "Division" means the division of health of the state
department of health and human resources;
(e) "Limited and intermittent nursing care" means direct
hands on nursing care of an individual who needs no more than two
hours of nursing care per day for a period of time no longer than
ninety consecutive days per episode which may only be provided
when the need for such care meets these factors: (1) The
resident requests to remain in the residential board and care
home; (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 may only be provided by or under the
supervision of a registered professional nurse and in accordance
with rules promulgated by the secretary;
(f) "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, catheterization, special procedures
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;
(g) "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;
(h) "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) "Resident" means an individual living in a residential
board and care home for the purpose of receiving personal
assistance or limited and intermittent nursing services from the
home;
(j) "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 a consideration or not, for
the express or implied purpose of providing accommodations,
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
or who may require limited and intermittent nursing care, but who
are capable of self-preservation, as certified in consultation
with a licensed health care professional, 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 may not be used unless the
residential board and care home has a backup power generator:
Provided, however, 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 residential board and care home within the
meaning of this article. Nothing contained in this article
applies to hospitals, as defined under section one, article
five-b of this chapter; or state institutions, as defined under section three, article one, chapter twenty-five of this code or
section six, article one, chapter twenty-seven of this code; or
residential board and care 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 to homes or
asylums operated by fraternal orders pursuant to article three,
chapter thirty-five of this code;
(k) "Secretary" means the secretary of the state department
of health and human resources or his or her designee; and
(l) "Self-preservation" means that a person is, at least,
capable of removing his or her physical self from situations
involving imminent danger, such as fire; and
(m) (l) The term "substantial compliance" means a level of
compliance with the rules such that identified deficiencies pose
no greater risk to resident health or safety than the potential
for causing minimal harm.
The secretary may define in rules any term used herein which
is not expressly defined.
NOTE: The purpose of this bill is to change the definitions
in the licensure code for residential board and care homes by
eliminating the term "self-preservation" and any reference to that term in order to bring the code into conformity with
national fire codes and the rules promulgated by the Office of
the State Fire Marshal.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.