HB2049 INTR

H. B. 2049

(By Delegate Fleischauer)

[Introduced January 13, 1999; referred to the

Committee on Health and Human Resources then Finance.]

A BILL to amend chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article four-d, relating to requiring medicaid providers to publicly disclose staffing and performance data in order to promote improved consumer information and choice; protecting employees of medicaid providers who report concerns about the safety and quality of services provided by medicaid providers or who report violations of federal or state law by those providers; and requiring review of the impact on public health and safety of proposed mergers and acquisitions of medicaid providers.

Be it enacted by the Legislature of West Virginia:

That chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article four-d, to read as follows:
ARTICLE 4D. PATIENT SAFETY ACT OF 1999.
§9-4D-1. Short title.

This article may be cited as the "Patient Safety Act of 1999."
§9-4D-2. Findings.

The Legislature hereby finds and declares the following:

(a) There has been increased and growing public concern expressed regarding the quality and safety of services provided
by health care facilities and institutions as these facilities have instituted aggressive efforts to reduce levels of staff who provide direct patient care services as a principal means of decreasing expenses.

(b) A growing body of data suggests a linkage between the number and mix of nursing staff and positive patient care outcomes, including the avoidance of patient death and injury.

(c) Many employees of health care facilities have expressed
fear for their employment if they report unsafe conditions, including violations of state or federal law.

(d) Unprecedented consolidation among health care institutions has led to increasing concern regarding the effect of this activity on the health and safety of communities served by these facilities, yet the state and federal governments have little authority to evaluate this effect in deciding whether to approve mergers and acquisitions among health care facilities.
§9-4D-3. Definitions.

For purposes of this article:

(1) "Licensed practical nurse or licensed vocational nurse" means an individual who is entitled under state law to practice as a licensed practical nurse or a licensed vocational nurse.

(2) "Made publicly available" means, with respect to information of a provider, information that is:

(A) Provided to the secretary and to any state agency responsible for licensing or accrediting the provider;

(B) Provided to any state agency which approves or oversees health care services delivered by the provider directly or through an insuring entity or corporation; or

(3) "Medicaid program" means the programs under article four-a, chapter nine of this code.

(4) "Provider" means an entity that is:

(A) A psychiatric hospital as described in section 1861(f) of the Social Security Act;

(B) A provider of services described in section 1861(u) of the Social Security Act;

(D) An ambulatory surgical center described in section 1832(a)(2)(F)(i) of the Social Security Act; or

(E) A renal dialysis facility described in section 1881(b)(1)(A) of the Social Security Act.

(5) "Registered nurse" means an individual who is entitled under state law to practice as a registered nurse.

(6) "Secretary" means the secretary of the department of health and human resources.
§9-4D-4. Public disclosure of staffing and outcomes data.

(a) Any provider under the medicaid program shall, as a condition of continued participation in that program, make publicly available information regarding nurse staffing and patient outcomes as specified by the secretary. This information shall include at least the following:

(1) The number of registered nurses providing direct care, expressed both in raw numbers (in terms of total hours of nursing care per patient, including adjustment for case mix and acuity) and as a percentage of nursing staff, the information shall be broken down in terms of the total nursing staff, each unit and each shift;

(2) The number of licensed practical nurses or licensed vocational nurses providing direct care, expressed both in raw numbers (in terms of total hours of nursing care per patient, including adjustment for case mix and acuity), and as a percentage of nursing staff, the information shall be broken down in terms of the total nursing staff, each unit and each shift;

(3) Numbers of unlicensed personnel utilized to provide direct patient care, expressed both in raw numbers and as a percentage of nursing staff, the information shall be broken down in terms of the total nursing staff, each unit and each shift;

(4) The average number of patients per registered nurse providing direct patient care, broken down in terms of the total nursing staff, each unit and each shift;

(5) Patient mortality rate, in raw numbers and by diagnosis or diagnostic-related group;

(6) Incidence of adverse patient care incidents, including incidents such as medication errors, patient injury, decubitus ulcers, nosocomial infections and nosocomial urinary tract infections; and

(7) Methods used for determining and adjusting staffing levels and patient care needs and the provider's compliance with these methods.

(b) Data regarding complaints filed with the state agency, the health care financing administration or an accrediting agency, compliance with the standards of which has been determined to demonstrate compliance with conditions of participation under the medicaid program and data regarding investigations and findings as a result of those complaints and the findings of scheduled inspection visits shall all be made publicly available.

(d) The secretary may waive or reduce reporting requirements under this section in the case of a small provider, as defined by the secretary by legislative rule, for whom the imposition of the requirements would be unduly burdensome.
§9-4D-5. Protection of certain activities by employees of medicaid providers.

(a) No provider under the medicaid program may terminate or take other adverse action against any employee or group of employees for actions taken for the purpose of:

(1) Notifying the provider of conditions which the employee or group of employees identifies, in communications with the provider, as dangerous or potentially dangerous or injurious to:

(A) Patients who currently receive services from the provider;

(B) Individuals who are likely to receive services from the provider; or

(2) Notifying a federal or state agency or an accreditation agency, compliance with the standards of which has been determined to demonstrate compliance with conditions of participation under the medicaid program, of those conditions identified in subdivision (1), subsection (a) of this section;

(3) Notifying other individuals of conditions which the employee or group of employees reasonably believes to be those described in subdivision (1), subsection (a) of this section;

(4) Discussing those conditions that are identified in subdivision (1) subsection (a) of this section with other employees for the purposes of initiating action described in subdivision (1), (2) or (3), subsection (a) of this section; or

(5) Other related activities as specified in legislative rules proposed by the secretary for promulgation.

(b) A determination by the secretary that a provider has taken action as described in subsection (a) of this section shall result in termination from participation in the medicaid program for a period of time to be specified by the secretary: Provided, That the period continues for at least one month.

(c) The protections of this section do not apply to any employee who knowingly or recklessly provides substantially false information to the secretary.

§9-4D-6. Evaluation of health and safety of certain mergers and acquisitions by or among medicaid providers.

(a) Any provider under the medicaid program that files with the United States department of justice and the federal trade commission notification of a transaction which is required to be reported pursuant to 15 U.S.C. 18a (section 7A of the Clayton Act) shall, on the same date as notification is submitted, provide the secretary with a written report that includes the overall impact of the transaction on the health services available and readily accessible to the community and which includes the impact of the transaction on each of the following:

(1) The availability and accessibility of primary and acute care and emergency services;

(2) The availability and accessibility of services for mothers and children;

(3) The availability and accessibility of services to the elderly;

(4) The availability and accessibility of services to other specific populations, including the poor, the uninsured, ethnic minorities, women, the disabled and the lesbian and gay communities;

(5) The availability and accessibility of specialized services, including services for the prevention, detection and treatment of the human immunodeficiency virus and related illnesses, mental health services and substance abuse services;

(6) The safety and quality of health care services to be provided, including anticipated changes in numbers and mix of nursing and other patient care staff and on other factors related to patient outcomes;

(7) The availability and accessibility of social services and other services within the community;

(8) Overall employment within the community;

(9) The provider's work force, including:

(A) The status of existing collective bargaining contracts, if any; and

(B) Plans for retraining and redeployment of employees who are displaced as a result of the contemplated transaction;

(10) The financial stability of the merged entity, taking into account at least projected acquisition costs, related expenses and planned marketing or advertising campaigns for the new entity; and

(11) Other factors to be specified in legislative rules proposed by the secretary for promulgation.

This report is in addition to any documentation required by any other state or federal agency.

(b) A report under subsection (a) of this section shall be made publicly available by the provider and by the secretary upon request. In addition, the provider shall make publicly available any documentation submitted to the United States department of justice, the federal trade commission or other federal or state agency regarding the contemplated transaction.

(c) The secretary shall conduct, or arrange for, public hearings on the elements of each report submitted under subsection (a) of this section and any other factors related to the health, safety and welfare of patients served by the provider and the community involved, including the provider's work force. These hearings shall be held at times and locations readily accessible to the public and may be conducted jointly with other relevant state agencies.

(d) The secretary shall review each proposed transaction. This review shall be based on the written report submitted under subsection (a) of this section, a transcript of testimony at the public hearing under subsection (c) of this section and any other factors which the secretary finds are relevant to the health, safety and welfare of the patients served by the provider and the community, including the provider's work force.

(e)(1) The secretary shall, within forty-five days of completion of a hearing under subsection (c) of this section, issue written findings on the likely impact of the contemplated transaction on the health and safety of the patients and communities served by the provider, including the provider's work force.

(2) If the secretary determines that the overall impact of the transaction on the health and safety of patients and the community is a negative one, the secretary shall issue, as part of the findings, a finding of negative impact on health and safety.

(3) In issuing findings under this subsection, the secretary may confer with any other agency that may have an interest in the impact on the public of the proposed transaction.

(f) A provider that executes a transaction which is the subject of a finding of negative impact on health and safety under subsection (e), subdivision (2) of this section or a provider which fails to file a report with the secretary pursuant to subsection (a) of this section is not considered to be in compliance with the conditions of participation under the medicaid program. The determination of noncompliance is subject to procedures and appeal provided for in legislative rules proposed for promulgation by the secretary. In the case of a determination that conditions brought about by the transaction in question pose immediate jeopardy or irreparable harm to patient health, safety and welfare, the secretary shall, if the transaction is completed, immediately suspend the entity's participation in the medicaid program and this suspension shall continue in force during any administrative or judicial review for the transaction sought by the entity.

NOTE: The purpose of this bill is to require that medicaid providers make public certain information concerning staffing levels and patient outcomes in order to protect health care consumers.

This article is new; therefore, strike-throughs and underscoring have been omitted.