H. B. 2041
(By Delegate Fleischauer)
January 8, 2003
; 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 2003.
§9-4D-1. Short title.
This article may be cited as the "Patient Safety Act of 2003."
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
(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.
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
(c) Provided to any member of the public who requests the
information directly from the provider.
(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;
(c) A rural health clinic described in section 1861(aa)(2) 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 used 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
(6) Occurrence of adverse patient care incidents, including
occurrence of 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
(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.
(c) All data made publicly available under this section shall
indicate the source and currency of the data provided.
(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
(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
(C) Employees of the provider.
(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 rules proposed by
the secretary for approval by the Legislature.
(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
(3) The availability and accessibility of services to the
(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
(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
(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 rules proposed by the
secretary for legislative approval.
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
(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
(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
subdivision (2), subsection (e) 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 rules proposed by the secretary for approval by the
Legislature. 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
This article is new; therefore, strike-throughs and
underscoring have been omitted.