H. B. 3177


(By Delegate C. White)
[Introduced March 30, 2001; referred to the
Committee on Health and Human Resources then Government Organization.]




A BILL to amend and reenact sections two, three, four, six and eleven, article five-o, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to medication administrated by unlicensed personnel; clarifying who may give medicine and in which facilities; and requiring written authorization from family or guardian for unlicensed personnel to administer medicine.

Be it enacted by the Legislature of West Virginia:
That sections two, three, four, six and eleven, article five-o, 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 5O. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.
§16-5O-2. Definitions.
As used in this article, unless a different meaning appears from the context, the following definitions apply:
(a) "Administration of medication" means:
(1) Assisting a person in the ingestion, application or inhalation of medications, including prescription drugs, or in the use of universal precautions or rectal or vaginal insertion of medication, according to the legibly written or printed directions of the attending physician or authorized practitioner, or as written on the prescription label; and
(2) Making a written record of such the assistance with regard to each medication administered, including the time, route and amount taken: Provided, That for purposes of this article, "administration" does not include judgment, evaluation, assessments, injections of medication, monitoring of medication or self-administration of medications, including prescription drugs and self-injection of medication by the resident.
(b) "Authorizing agency" means the department's office of health facility licensure and certification.
(c) "Department" means the department of health and human resources.
(d) "Facility" means an ICF/MR, a personal care home, residential board and care home, behavioral health group home, private residence in which health care services are provided under the supervision of a registered nurse or an adult family care home that is licensed by or approved by the department, but does not include a private home for medication passing purposes.
(e) "Facility staff member" means an individual employed by a facility but does not include a health care professional acting within the scope of a professional license or certificate.
(f) "Health care professional" means a medical doctor or doctor of osteopathy, a podiatrist, registered nurse, practical nurse, registered nurse practitioner, physician's assistant, dentist, optometrist or respiratory care professional licensed under chapter thirty of this code.
(g) "ICF/MR" means an intermediate care facility for the mentally retarded which is certified by the department.
(h) "Medication" means a drug, as defined in section one hundred one, article one, chapter sixty-a of this code, which has been prescribed by a duly authorized health care professional to be ingested through the mouth, applied to the outer skin, eye or ear, or applied through nose drops, vaginal or rectal suppositories.
(i) "Registered professional nurse" means a person who holds a valid license pursuant to article seven, chapter thirty of this code.
(j) "Resident" means a resident of a facility.
(k) "Secretary" means the secretary of the department of health and human resources or his or her designee.
(l) "Self-administration of medication" means the act of a resident, who is independently capable of reading and understanding the labels of drugs ordered by a physician, in opening and accessing prepackaged drug containers, accurately identifying and taking the correct dosage of the drugs as ordered by the physician, at the correct time and under the correct circumstances.
(m) "Supervision of self-administration of medication" means a personal service which includes reminding residents to take medications, opening medication containers for residents, reading the medication label to residents, observing residents while they take medication, checking the self administered dosage against the label on the container and reassuring residents that they have obtained and are taking the dosage as prescribed.
§16-5O-3. Administration of medications in facilities.
(a) The secretary is authorized to establish and implement a program for the administration of medications in facilities. The program shall be developed and conducted in cooperation with the appropriate agencies, advisory bodies and boards.
(b) Administration of medication pursuant to this article shall be performed only by:
(1) Registered professional nurses;
(2) Other licensed health care professionals; or
(3) Facility staff members who have been trained and retrained every two years and who are subject to the supervision of and approval by a registered professional nurse: Provided, That nothing in this article is intended to permit any person who is not at least a registered professional nurse to pass medications in a medically certified setting.
(c) Subsequent to assessing the health status of an individual resident, a registered professional nurse, in collaboration with the resident's attending physician and the facility staff member, may recommend that the facility authorize a facility staff member to administer medication if the staff member:
(1) Has been trained pursuant to the requirements of this article;
(2) Is considered by the registered professional nurse to be competent;
(3) Consults with the registered professional nurse or attending physician on a regular basis; and
(4) Is monitored or supervised by the registered professional nurse.
(d) Nothing in this article may be construed to prohibit any facility staff member from administering medications or providing any other prudent emergency assistance to aid any person who is in acute physical distress or requires emergency assistance.
(e) Supervision of self-administration of medication by facility staff members who are not licensed health care professionals may be permitted in certain circumstances, when the substantial purpose of the setting is other than the provision of health care.
§16-5O-4. Exemption from licensure; statutory construction.
(a) Any individual who is not otherwise authorized by law to administer medication may administer medication in a facility if he or she meets the requirements and provisions of this article: Provided, That nothing in this article is intended to permit any person who is not at least a registered professional nurse to pass medications in a medically certified setting. Any person who administers medication pursuant to the provisions of this article shall be exempt from the licensing requirements of chapter thirty of this code.
(b) All licensed health care professionals as defined in this article remain subject to the provisions of their respective licensing laws.
(c) Notwithstanding any other provision of law to the contrary, the provisions of this article shall may not be construed to violate or be in conflict with any of the provisions of articles seven or seven-a, chapter thirty of this code.
§16-5O-6. Availability of records; eligibility requirements of facility staff.
(a) Any facility which authorizes unlicensed staff members to administer medications pursuant to the provisions of this article shall make available to the authorizing agency a list of the individual facility staff members authorized to administer medications.
(b) A facility may permit a facility staff member to administer medications in a single specific agency only after compliance with all of the following:
(1) The staff member has successfully completed a training program and received a satisfactory competency evaluation as required by the provisions of this article;
(2) The facility determines there is no statement on the state administered nurse aide registry indicating that the staff member has been the subject of finding of abuse or neglect of a long-term care facility resident or convicted of the misappropriation of such a resident's property;
(3) The facility staff member has had a criminal background check or if applicable, a check of the state police abuse registry, establishing that the individual has been convicted of no crimes against persons or drug related crimes;
(4) The medication to be administered is received and maintained by the facility staff member in the original container in which it was dispensed by a pharmacist or the prescribing health care professional; and
(5) The facility staff member has complied with all other applicable requirements of this article, the rules adopted pursuant to this article and such other criteria, including minimum competency requirements, as are specified by the authorizing agency; and
(6) The closest family member or guardian of the resident who requires medication passing has signed a verified authorization permitting a noncertified facility staff member to give these medications.
§16-5O-11. Rules.
The department shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code as may be necessary to implement the provisions of this article. Subsequently, the department may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code. The rules shall provide that a facility may receive higher reimbursement rates for those clients who require medication passing assistance.
 NOTE: The purpose of this bill is to clarify the procedure for medication administrated by unlicensed personnel. It clarifies who may give medicine and in which facilities and requires written authorization from family or guardian for unlicensed personnel to administer medicine.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.