H. B. 3005


(By Delegate Leach)
[Introduced February 26, 1999; referred to the
Committee on Goverment Organization.]




A BILL to amend and reenact sections 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 five-c by adding thereto a new section, designated section fifteen-a, all relating to nursing homes; defining terms; requiring that legislative rules setting minimum required staffing levels be in accord with enumerated factors; requiring legislative rules mandating criminal background checks of employees to screen for certain prior convictions; establishing offense of causing intimidation at a nursing home; setting forth criminal penalties; and providing for a private right of action.

Be it enacted by the Legislature of West Virginia:
That sections 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 five-c 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.

§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 construed as constituting 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 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 an 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 the cost of health care 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 the residents but who does not hold a license issued pursuant to chapter thirty of this code. The term does not include any employee whose principal responsibilities are in management, administration, 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. These minimum standards shall provide for the employment of nursing personnel and unlicensed nursing personnel in sufficient numbers 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 applicable state and federal reimbursement rates and practices;
(3) Qualifications of facility's administrators, medical directors, nurses, aides, and other personnel, including a requirement that the facility conduct a criminal history background check or, if applicable, a check of the state police central abuse registry, to establish that no employee has been convicted of a crime against the person or a drug related offense;
(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; private right of action.

(a) Any person, not an employee or resident of a nursing home, 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 whose activity thereon causes any employee, resident or visitor to actually feel terrorized, frightened, intimidated, threatened, harassed or molested, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars, imprisonment in a county or regional jail for not more than ninety days, or both. For a second or subsequent offense, the fine may be increased to not more than two hundred fifty dollars. Each day of a continuing violation constitutes a separate offense.
(b) In addition to any criminal penalty that may be imposed pursuant to subsection (a) of this section, any person who violates the provisions of this section is also subject to civil liability for damages in an action brought by any nursing home, employee, resident or visitor actually harmed by the violation.
(c) Nothing in this section may be construed to prohibit activity or conduct otherwise protected by the constitution or laws of this state or of the United States.



NOTE: The purpose of this bill is to assure proper treatment of nursing home residents by providing for minimum staffing levels, requiring criminal background checks of employees and prohibiting threatening activity at the facility.
Strike-throughs indicate language that would be stricken from present law and underscoring indicates new language that would be added.

§16-5C-15a is new; therefore, strike-throughs and underscoring have been omitted.