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:

§16-5C-1. Purpose.

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.
§16-5C-2. Definitions.
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 activity.

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.