H. B. 2103
(By Delegates Michael, Leach and Campbell)
[Introduced January 10, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section two, 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
five-a, all relating to requiring nursing homes or facilities
to permit a resident or resident's legal representative to
monitor the resident through the use of electronic monitoring
devices; definitions; requiring the facility to provide access
to a power source and mounting space to set up the electronic
monitoring device; prohibiting the facility from refusing to
admit an individual to the facility or removing a resident
from the facility because of a request to install an
electronic monitoring device and establishing criminal
penalties.
Be it enacted by the Legislature of West Virginia:
That section two, 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 article five-c of said chapter
be amended by adding thereto a new section, designated section
five-a, all to read as follows:
ARTICLE 5C. NURSING 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 considered 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) "Electronic monitoring device" includes a video
surveillance camera, an audio device, a video telephone or an
internet video surveillance device.
The director may define in the rules any term used herein
which is not expressly defined.
§16-5C-5a. Electronic monitoring devices.
(a) A nursing home or facility shall permit a resident or
legal representative of the resident to monitor the resident
through the use of electronic monitoring device. Monitoring under
this section shall:
(1) Be noncompulsory and at the election of the resident or
legal representative of the resident;
(2) Be funded by the resident or legal representative of the
resident;
(3) Protect the privacy rights of other residents and visitors
to the institution to the extent reasonably possible; and
(4) Be allowed in the nursing home or facility and the
institution may not refuse to admit an individual to the facility
or remove a resident from the facility because of a request for
electronic monitoring.
(b) A nursing home or facility shall make reasonable physical
accommodations for electronic monitoring by providing:
(1) A reasonably secure place to mount the electronic
monitoring device; and
(2) Access to a power source;
(3) Written notice to the resident or legal representative of
the resident's right to electronic monitoring.
(c) A nursing home or facility may request a resident or a
resident's personal representative to conduct electronic monitoring
within plain view.
(d) A resident who wishes to install an electronic monitoring
device may be required by the administrator of the nursing home or
facility to make the request in writing.
(e) Subject to the West Virginia rules of evidence, a tape
created through the use of electronic monitoring shall be admissible in either a civil or criminal action brought in a West
Virginia court or administrative hearing.
(f) A person who operates a nursing home or facility in
violation of the provisions of this section is guilty of a
misdemeanor and, upon conviction thereof, may be fined not more
than two thousand dollars or confined in a county or regional jail
for not more than one year, or both.
(g) A person who willfully and without the consent of a
resident hampers, obstructs, tampers with or destroys an electronic
monitoring device or tape is guilty of a misdemeanor and, upon
conviction thereof, may be fined not more than two thousand dollars
or confined in a county or regional jail for not more than ninety
days, or both fined and confined.
NOTE: The purpose of the bill is to require a nursing home to
permit a resident or the legal representative of the resident to
monitor the resident through the use of electronic monitoring
devices. It establishes the responsibilities of the resident, the
legal representative of the resident and the nursing home. It
establishes penalties for noncompliance.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§16-5C-5a is new; therefore, strike-throughs and underscoring
have been omitted.