Senate Bill No. 704
(By Senators Walker, Ross and Helmick)
[Introduced February 23, 1998; referred to the
Committee on Health and Human Resources; and then to the
Committee on Finance.]
A BILL to amend and reenact sections one, two and five, article
five-c, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said article by adding thereto a new section,
designated section fifteen-a, all relating to nursing home
care; providing that medicaid reimbursement payments shall
be adequate to pay salaries to nursing personnel and
unlicensed nursing personnel to provide highest practicable
care in economical and efficient manner; defining
"unlicensed nursing personnel"; acuity of nursing home
residentsto be considered in rules establishing minimum
standards of operation; rules are to provide for the
employment of nursing personnel and unlicensed nursing personnel necessary to attain the highest practicable
physical, mental and psychological well-being of nursing
home residents for purposes of determining adequacy of
medicaid payments; and penalty for threatening or
intimidating behavior towards nursing home employees,
residents or visitors.
Be it enacted by the Legislature of West Virginia:
That sections one, 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; and that said
article be further amended by adding thereto a new section,
designated section fifteen-a, all to read as follows:
ARTICLE 5C. NURSING AND PERSONAL CARE HOMES AND RESIDENTIAL
BOARD AND CARE HOMES.
It is the policy of this state to encourage and promote the
development and utilization of resources to ensure the effective
and financially efficient care and treatment of persons who are
convalescing or whose physical or mental condition requires them
to receive a degree of nursing or related health care greater
than that necessary for well individuals. Such care and
treatment require 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, voluntary and governmental nursing
homes it is the policy of this state to encourage, promote and
require the maintenance of nursing homes so as to ensure
protection of the rights and dignity of those using the services
of such facilities.
The Legislature recognizes that services to many of the
residents of the state's nursing homes are dependent upon the
medicaid program, and that in order to accomplish the purposes of
this article, payments from such program to facilities for such
services shall be sufficient to cover the costs determined by
generally accepted accounting principles incurred by each such
facility in providing care in an economical and efficient manner,
and that it is adequate to permit the provision of care and
services necessary to attain or maintain the highest practicable
physical, mental and psychological well-being of each resident
eligible for nursing benefits under the state's medicaid program
in conformity with the applicable state and federal laws, rules
and quality and safety standards. Consistent with these objectives, such payments shall be sufficient to provide salaries
to nursing personnel and unlicensed nursing personnel that
recognize the full value of their services.
The provisions of this article are hereby declared to be
remedial and shall be liberally construed to effectuate its
purposes and intents.
As used in this article, unless a different meaning appears
from the context:
(a) "Deficiency" means a nursing home's failure to meet the
requirements specified in article five-c, chapter sixteen of this
code and rules promulgated thereunder.
(b) "Director" means the secretary of the department of
health and human resources or his or her designee.
(c) "Household" means a private home or residence which is
separate from or unattached to a nursing home.
(d) "Immediate jeopardy" means a situation in which the
nursing home's noncompliance with one or more of the provisions
of this article or rules promulgated thereunder has caused or is
likely to cause serious harm, impairment or death to a resident.
(e) "Nursing home" or "facility" 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, ongoing nursing
care due to physical or mental impairment or which provides
services for the rehabilitation of persons who are convalescing
from illness or incapacitation.
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 within the meaning of this article.
Nothing contained in this article applies to nursing homes
operated by the federal government; or extended care facilities
operated in conjunction with a hospital; 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.
(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 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.
(g) "Resident" means an individual living in a nursing home.
(h) "Review organization" means any committee or
organization engaging in peer review or quality assurance,
including, but not limited to, a medical audit committee, a
health insurance review committee, a professional health service
plan review committee or organization, a dental review committee,
a physician's advisory committee, a podiatry advisory committee,
a nursing advisory committee, any committee or organization
established pursuant to a medical assistance program, any
committee or organization established or required under state or
federal statutes, rules or regulations, and any committee
established by one or more state or local professional societies
or institutes, to gather and review information relating to the
care and treatment of residents for the purposes of: (1)
Evaluating and improving the quality of health care rendered; (2)
reducing morbidity or mortality; or (3) establishing and enforcing guidelines designed to keep within reasonable bounds
the cost of health care.
(i) "Sponsor" means the person or agency legally responsible
for the welfare and support of a resident.
(j) "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.
(k) "Substantial compliance" means a level of compliance
with the rules such that no deficiencies exist or such that
identified deficiencies pose no greater risk to resident health
or safety than the potential for causing minimal harm.
(l) "Unlicensed nursing personnel" means an employee of a
nursing home who assists in providing care to residents of a
nursing home, and who does not possess a license under chapter
thirty of this code; the term does not include an employee whose
principle responsibilities are in management, food preparation,
housekeeping, laundry or maintenance.
The director may define in the rules any term used herein
which is not expressly defined.
§16-5C-5. Rules; minimum standards for nursing homes.
(a) All rules shall be proposed for legislative approval in
accordance with the provisions of article three, chapter twenty-nine-a of this code. The director shall recommend the
adoption, amendment or repeal of such rules as may be necessary
or proper to carry out the purposes and intent of this article.
(b) The director shall recommend rules establishing minimum
standards of operation of nursing homes including, but not
limited to, the following:
(1) Administrative policies, including: (A) An affirmative
statement of the right of access to nursing homes by members of
recognized community organizations and community legal services
programs whose purposes include rendering assistance without
charge to residents, consistent with the right of residents to
privacy; and (B) a statement of the rights and responsibilities
of residents in nursing homes which prescribe, as a minimum, such
a statement of residents' rights as included in the United States
department of health and human services regulations, in force on
the effective date of this article, governing participation of
nursing homes in the medicare and medicaid programs pursuant to
titles eighteen and nineteen of the Social Security Act;
(2) Minimum numbers of administrators, medical directors,
nurses, aides and other personnel according to the occupancy of
the facility and the acuity of its residents; and such rules
shall provide for the employment of nursing personnel and
unlicensed nursing personnel sufficient to permit the provision of care and services necessary to attain or maintain the highest
practicable physical, mental and psychological well-being of each
resident, consistent with the payment provisions of section one
of this article;
(3) Qualifications of facility's administrators, medical
directors, nurses, aides, and other personnel;
(4) Safety requirements;
(5) Sanitation requirements;
(6) Personal services to be provided;
(7) Dietary services to be provided;
(8) Medical records;
(9) Social and recreational activities to be made available;
(10) Pharmacy services;
(11) Nursing services;
(12) Medical services;
(13) Physical facility;
(14) Resident rights; and
(15) Admission, transfer and discharge rights.
§16-5C-15a. Intimidation at nursing homes; penalties.
A person, who is not an employee or resident of a nursing
home and who enters upon the premises of a nursing home for the
purpose of engaging in an activity that would cause a reasonable
person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and such activity actually causes a
nursing home employee, resident, or visitor to feel that way, is
guilty of a misdemeanor and, upon conviction thereof, shall be,
for the first offense, fined not more than one hundred dollars,
or imprisoned in the county or regional jail for a period of not
more than ninety days, or both fined and imprisoned. For each
subsequent offense, the person may be fined not more than two
hundred fifty dollars, or imprisoned in the county or regional
jail for a period of not more than ninety days, or both fined and
imprisoned. Each day of a continuing violation after conviction
is a separate offense.
Any person who engages in an activity proscribed by this
section is also liable in a civil action for treble damages to
the nursing home, employee, resident or visitor damaged by such
NOTE: The purpose of this bill is to assure proper
treatment of nursing home residents by providing for adequate
medicaid reimbursement, appropriate levels of staffing, and
prohibiting threatening activity at the facility.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§16-5C-15a is new; therefore, underscoring and strike- throughs have been omitted.