H. B. 4523
(By Delegates G. White and Wakim)
[Introduced February 13, 2006; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend and reenact §16-2I-1 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §16-2I-1a, all relating to defining
terms relating to abortion clinics, hospitals, nursing homes
and nursing care facilities; regulation of facilities; and
licensure of facilities.
Be it enacted by the Legislature of West Virginia:
That §16-2I-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §16-2I-1a, all to read as
follows:
ARTICLE 2I. WOMEN'S RIGHT TO KNOW ACT.
§16-2I-1. Definitions.
For the purposes of this article, the words or phrases defined in this section have these meanings ascribed to them.
(a) "Abortion" means the use or prescription of any
instrument, medicine, drug or any other substance or device
intentionally to terminate the pregnancy of a female known to be
pregnant with an intention other than to increase the probability
of a live birth, to preserve the life or health of the child after
live birth or to remove a dead embryo or fetus.
(b) "Abortion clinic" means any facility, other than a
hospital as defined herein or an ambulatory surgery center as
licensed by the Department of Health and Human Resources, in which
twenty-five or more first trimester abortions are performed in any
twelve-month period.
(b) (c) "Attempt to perform an abortion" means an act, or an
omission of a statutorily required act, that, under the
circumstances as the actor believes them to be, constitutes a
substantial step in a course of conduct planned to culminate in the
performance of an abortion in West Virginia in violation of this
article.
(d) "Certified nursing facility" means any skilled nursing
facility, skilled care facility, intermediate care facility,
nursing or nursing care facility, or nursing home, whether
freestanding or a portion of a freestanding medical care facility,
that is certified as a Medicare or Medicaid provider, or both.
(e) "Class I violation" means failure of a nursing home or certified nursing facility to comply with one or more requirements
of state or federal law or regulations which creates a situation
that presents an immediate and serious threat to patient health or
safety.
(f) "Class II violation" means a pattern of noncompliance by
a nursing home or certified nursing facility with one or more
federal conditions of participation which indicates delivery of
substandard quality of care but does not necessarily create an
immediate and serious threat to patient health and safety.
Regardless of whether the facility participates in Medicare or
Medicaid, the federal conditions of participation shall be the
standards for Class II violations.
(g) "Hospital" means any facility licensed in which the
primary function is the provision of diagnosis, of treatment, and
of medical and nursing services, surgical or nonsurgical, for two
or more nonrelated individuals, including hospitals known by
varying nomenclature or designation such as sanatoriums,
sanitariums and general, acute, rehabilitation, chronic disease,
short-term, long-term, outpatient surgical, and inpatient or
outpatient maternity hospitals.
(h) "Immediate and serious threat" means a situation or
condition having a high probability that serious harm or injury to
patients could occur at any time, or already has occurred, and may
occur again, if patients are not protected effectively from the harm, or the threat is not removed.
(i) "Inspection" means all surveys, inspections,
investigations and other procedures necessary for the department to
perform in order to carry out various obligations imposed on the
commissioner by applicable state and federal laws and regulations.
(c) (j) "Medical emergency" means any condition which, on the
basis of a physician's good-faith clinical judgment, so complicates
the medical condition of a pregnant female as to necessitate the
immediate termination of her pregnancy to avert her death or for
which a delay will create serious risk of substantial and
irreversible impairment of a major bodily function.
(k) "Nursing home" means any facility or any identifiable
component of any facility licensed pursuant to this article in
which the primary function is the provision, on a continuing basis,
of nursing services and health related services for the treatment
and inpatient care of two or more nonrelated individuals, including
facilities known by varying nomenclature or designation such as
convalescent homes, skilled nursing facilities or skilled care
facilities, intermediate care facilities, extended care facilities
and nursing or nursing care facilities.
(l) "Nonrelated" means not related by blood or marriage,
ascending or descending or first degree full or half collateral.
(d) (m) "Physician" means any medical or osteopathic doctor
licensed to practice medicine in this state.
(e) (n) "Probable gestational age of the embryo or fetus"
means what, in the judgment of the physician, will with reasonable
probability be the gestational age of the embryo or fetus at the
time the abortion is planned to be performed.
(f) (o) "Stable Internet website" means a website that, to the
extent reasonably practicable, is safeguarded from having its
content altered other than by the Department of Health and Human
Resources.
(p) "Substandard quality of care" means deficiencies in
practices of patient care, preservation of patient rights,
environmental sanitation, physical plant maintenance, or life
safety which, if not corrected, will have a significant harmful
effect on patient health and safety.
§16-2I-1a. Requirements of abortion facilities, hospitals,
nursing homes and nursing care facilities; rules
promulgated by the department; licenses; and
license suspension and renewal.
(a) No person shall own, establish, conduct, maintain, manage
or operate in this state any abortion clinic, hospital or nursing
home unless such abortion clinic, hospital or nursing home is
licensed or certified as provided in this section. No license
issued hereunder shall be assignable or transferable.
(b) Beginning the first day of July, two thousand six, no
proposed abortion clinic shall operate in the state unless such abortion clinic is licensed by the department. The department
shall promulgate regulations for the licensure of abortion clinics
that require that every licensed abortion clinic comply with the
requirements for operation of ambulatory surgery centers in effect
on the thirtieth day of June, two thousand six.
(c) State agencies shall make or cause to be made only such
inspections of hospitals as are necessary to carry out the various
obligations imposed on each agency by applicable state and federal
laws and regulations. Any on-site inspection by a state agency or
a division or unit thereof that substantially complies with the
inspection requirements of any other state agency or any other
division or unit of the inspecting agency charged with making
similar inspections shall be accepted as an equivalent inspection
in lieu of an on-site inspection by said agency or by a division or
unit of the inspecting agency. A state agency shall coordinate its
hospital inspections both internally and with those required by
other state agencies so as to ensure that the requirements of this
section are met.
(d) Notwithstanding any provision of law to the contrary, all
hospitals licensed by the department which have been certified
under the provisions of Title XVIII of the Social Security Act for
hospital or psychiatric services or which have obtained
accreditation may be subject to inspections so long as such
certification or accreditation is maintained but only to the extent necessary to ensure the public health and safety.
(e) Pursuant to this section, the commissioner shall issue
licenses to, and assure compliance with certification requirements
for abortion clinics, hospitals and nursing homes, and assure
compliance with certification requirements for facilities owned or
operated by agencies of the state, which after inspection are found
to be in compliance with the provisions of this section and with
all applicable state and federal regulations. The commissioner
shall notify by certified mail or by overnight express mail any
applicant denied a license of the reasons for such denial.
(f) The commissioner shall cause each and every abortion
clinic, hospital, nursing home, and certified nursing facility to
be inspected periodically, but not less often than biennially, in
accordance with the provisions of this section and regulations of
the department.
(g) Unless expressly prohibited by federal statute or
regulation, the findings of the commissioner, with respect to
periodic surveys of nursing facilities conducted pursuant to the
Survey, Certification, and Enforcement Procedures set forth in 42
C.F.R. Part 488, shall be considered case decisions and shall be
subject to the department's dispute resolution procedures, or, at
the option of the department or the nursing facility, the formal
administrative fact-finding procedures. The administrative case
decisions by the department shall also be subject to the right to judicial review.
(h) The commissioner may, in accordance with regulations of
the department, provide for consultative advice and assistance,
with such limitations and restrictions as he or she deems proper,
to any person who intends to apply for an abortion clinic, hospital
or nursing home license or nursing facility certification.
(i) For the purpose of facilitating the prompt restoration of
electrical service and prioritization of customers during
widespread power outages, the commissioner shall notify on a
quarterly basis all electric utilities serving customers in the
state as to the location of all nursing homes licensed in it. The
requirements of this subsection shall be met if the commissioner
maintains such information on an electronic database accessible by
electric utilities serving customers in the state.
(j) Upon determining that any abortion clinic is in violation
of this section, any other state law or any regulation promulgated
by an agency of the state, or any federal law or regulation, the
department may, upon proper notice, deny, suspend, or revoke its
license, or pursue civil or criminal penalties.
(k) The regulations promulgated by the department to carry out
the provisions of this section shall be in substantial conformity
to the standards of health, hygiene, sanitation, construction and
safety as established and recognized by medical and health care
professionals and by specialists in matters of public health and safety, including health and safety standards established under
provisions of Title XVIII and Title XIX of the Social Security Act.
The department's regulations for licensure of abortion clinics
shall require that such clinics comply with the requirements for
ambulatory surgery centers.
(l) The regulations promulgated by the department shall
consist of the following:
(1) Minimum standards for: (i) The construction and
maintenance of abortion clinics, hospitals, nursing homes and
certified nursing facilities to assure the environmental protection
and the safety of its patients and employees and the public; (ii)
the operation, staffing and equipping of abortion clinics,
hospitals, nursing homes and certified nursing facilities; (iii)
qualifications and training of staff of abortion clinics,
hospitals, nursing homes and certified nursing facilities, except
those professionals licensed or certified by a health regulatory
board within the department; and (iv) conditions under which an
abortion clinic, a hospital or nursing home may provide medical and
nursing services to patients in their places of residence;
(2) A requirement that at least one physician who is licensed
to practice medicine in this state shall be on call at all times,
though not necessarily physically present on the premises, at each
hospital which operates or holds itself out as operating an
emergency service;
(3) Classification of hospitals and nursing homes by type of
specialty or service and provisions for licensing hospitals and
nursing homes by bed capacity and by type of specialty or service;
(4) A requirement that each hospital establish a protocol for
organ donation, in compliance with federal law and the regulations
of the Centers for Medicare & Medicaid Services (CMS), particularly
42 C.F.R. § 482.45. Each hospital shall have an agreement with an
organ procurement organization designated in CMS regulations for
routine contact, whereby the provider's designated organ
procurement organization certified by CMS: (i) Is notified in a
timely manner of all deaths or imminent deaths of patients in the
hospital; and (ii) is authorized to determine the suitability of
the decedent or patient for organ donation and, in the absence of
a similar arrangement with any eye bank or tissue bank in the state
certified by the Eye Bank Association of America or the American
Association of Tissue Banks, the suitability for tissue and eye
donation. The hospital shall also have an agreement with at least
one tissue bank and at least one eye bank to cooperate in the
retrieval, processing, preservation, storage, and distribution of
tissues and eyes to ensure that all usable tissues and eyes are
obtained from potential donors and to avoid interference with organ
procurement. The protocol shall ensure that the hospital
collaborates with the designated organ procurement organization to
inform the family of each potential donor of the option to donate organs, tissues, or eyes or to decline to donate. The individual
making contact with the family shall have completed a course in the
methodology for approaching potential donor families and requesting
organ or tissue donation that: (i) Is offered or approved by the
organ procurement organization and designed in conjunction with the
tissue and eye bank community; and (ii) encourages discretion and
sensitivity according to the specific circumstances, views, and
beliefs of the relevant family. In addition, the hospital shall
work cooperatively with the designated organ procurement
organization in educating the staff responsible for contacting the
organ procurement organization's personnel on donation issues, the
proper review of death records to improve identification of
potential donors, and the proper procedures for maintaining
potential donors while necessary testing and placement of potential
donated organs, tissues, and eyes takes place. This process shall
be followed, without exception, unless the family of the relevant
decedent or patient has expressed opposition to organ donation, the
chief administrative officer of the hospital or his or her designee
knows of such opposition, and no donor card or other relevant
document, such as an advance directive, can be found;
(5) A requirement that each hospital that provides obstetrical
services establish a protocol for admission or transfer of any
pregnant woman who presents herself while in labor;
(6) A requirement that each licensed hospital develop and implement a protocol requiring written discharge plans for
identified, substance-abusing, postpartum women and their infants.
The protocol shall require that the discharge plan be discussed
with the patient and that appropriate referrals for the mother and
the infant be made and documented. Appropriate referrals may
include, but need not be limited to, treatment services,
comprehensive early intervention services for infants and toddlers
with disabilities and their families pursuant to Part H of the
Individuals with Disabilities Education Act, 20 U.S.C. § 1471 et
seq., and family-oriented prevention services. The discharge
planning process shall involve, to the extent possible, the father
of the infant and any members of the patient's extended family who
may participate in the follow-up care for the mother and the
infant. Immediately upon identification of any substance-abusing,
postpartum woman, the hospital shall notify, subject to federal law
restrictions, the community services board of the jurisdiction in
which the woman resides to appoint a discharge plan manager. The
community services board shall implement and manage the discharge
plan;
(7) A requirement that each nursing home and certified nursing
facility fully disclose to the applicant for admission the home's
or facility's admissions policies, including any preferences given;
(8) A requirement that each abortion clinic and each licensed
hospital establish a protocol relating to the rights and responsibilities of patients which shall include a process
reasonably designed to inform patients of such rights and
responsibilities, a copy of which shall be given to patients on
admission;
(9) Standards and a process for designation of levels or
categories of care in neonatal services according to an applicable
national or state developed evaluation system. Such standards may
be differentiated for various levels or categories of care and may
include, but need not be limited to, requirements for staffing
credentials, staff and patient ratios, equipment, and medical
protocols;
(10) A requirement that each nursing home and certified
nursing facility train all employees who are mandated to report
adult abuse, neglect, or exploitation on such reporting procedures
and the consequences for failing to make a required report;
(11) Allowance for hospital personnel, as designated in
medical staff bylaws, rules and regulations, or hospital policies
and procedures, to accept emergency telephone and other verbal
orders for medication or treatment for hospital patients from
physicians, and other persons lawfully authorized by state statute
to give patient orders, subject to a requirement that such verbal
order be signed, within a reasonable period of time not to exceed
seventy-two hours as specified in the hospital's medical staff
bylaws, rules and regulations or hospital policies and procedures, by the person giving the order, or, when such person is not
available within the period of time specified, cosigned by another
physician or other person authorized to give the order; and
(12) A requirement, unless the vaccination is medically
contraindicated or the resident declines the offer of the
vaccination, that each certified nursing facility and nursing home
provide or arrange for the administration to its residents of: (i)
An annual vaccination against influenza; and (ii) a pneumococcal
vaccination, in accordance with the most recent recommendations of
the Advisory Committee on Immunization Practices of the Centers for
Disease Control and Prevention.
(m) Upon obtaining the appropriate license, if applicable,
licensed hospitals, nursing homes, and certified nursing facilities
may operate adult day care centers.
(n) All facilities licensed by the department pursuant to this
section which provide treatment or care for hemophiliacs and, in
the course of such treatment, stock clotting factors, shall
maintain records of all lot numbers or other unique identifiers for
such clotting factors in order that, in the event the lot is found
to be contaminated with an infectious agent, those hemophiliacs who
have received units of this contaminated clotting factor may be
apprised of this contamination. Facilities which have identified
a lot which is known to be contaminated shall notify the
recipient's attending physician and request that he or she notify the recipient of the contamination. If the physician is
unavailable, the facility shall notify by mail, return receipt
requested, each recipient who received treatment from a known
contaminated lot at the individual's last known address.
(o) Each application for an abortion clinic, hospital or
nursing home license shall be made on a form prescribed by the
department. The application shall specify the abortion clinic's,
hospital's or nursing home's official name, and the kind of
hospital or nursing home, the location thereof, the name of the
person in charge, and such additional relevant information as the
department requires.
(p) A service charge of one dollar and fifty cents per patient
bed for which the hospital or nursing home is licensed, but not
less than seventy-five dollars nor more than five hundred dollars,
shall be paid for each license upon issuance and renewal. The
service charge for a license for a hospital or nursing home which
does not provide overnight inpatient care shall be seventy-five
dollars. All service charges received under the provisions of this
subsection shall be paid into a special fund of the department and
are appropriated to the department for the operation of the
hospital and nursing home licensure and inspection program.
(q) All abortion clinics shall submit, in accordance with the
department's regulations, such licensure fees as may be required to
support the costs of the abortion clinic licensure and inspection program.
(r) All licenses for abortion clinics, hospitals, and nursing
homes shall expire at midnight on the thirty-first day of December
of the year issued, or as otherwise specified, and shall be
required to be renewed annually.
(s) The current license for all abortion clinics, hospitals,
and nursing homes shall at all times be posted in each abortion
clinic, hospital or nursing home in a place readily visible and
accessible to the public.
(t) In accordance with applicable regulations of the
department, the commissioner: (i) May restrict or prohibit new
admissions to any nursing home or certified nursing facility or the
operation of any abortion clinic; or (ii) may petition the court to
impose a civil penalty against any nursing home or certified
nursing facility or abortion clinic or to appoint a receiver for
such a nursing home or certified nursing facility, or, in the case
of a nursing home or certified nursing facility, both; or (iii) may
revoke the certification or may revoke or suspend the license of
an abortion clinic, hospital or nursing home or the certification
of any certified nursing facility for violation of any provision of
this section or of any applicable regulation promulgated under this
section or for permitting, aiding, or abetting the commission of
any illegal act in the abortion clinic, hospital or nursing home.
All appeals from notice of imposition of administrative sanctions shall be received in writing within fifteen days of the date of
receipt of such notice.
(u) If a license or certification is revoked as herein
provided, a new license or certification may be issued by the
commissioner after satisfactory evidence is submitted to him or her
that the conditions upon which revocation was based have been
corrected and after proper inspection has been made and compliance
with all provisions of this section and applicable state and
federal law and regulations hereunder has been obtained.
(v) Suspension of a license shall in all cases be for an
indefinite time. The commissioner may completely or partially
restore a suspended license or certificate when he or she
determines that the conditions upon which suspension was based have
been completely or partially corrected and that the interests of
the public will not be jeopardized by resumption of operation. No
additional service charges shall be required for restoring such
license.
NOTE: The purpose of this bill is to define terms related to
abortion clinics, hospitals, nursing homes and nursing care
facilities; establish rules to be promulgated by the Department of
Health and Human Resources in this area and to provide for
licensure, revocation and renewal of these facilities.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§16-2I-1a is new; therefore, strike-throughs and underscoring have been omitted.