H. B. 2731
(By Delegates Fleischauer, Marshall, Barill,
Manypenny, Campbell, Pasdon, Fragale,
Iaquinta, Staggers, Miley and Perry)
[Introduced February 26, 2013; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend and reenact §16-5O-1, §16-5O-2, §16-5O-3, §16-5O-4,
§16-5O-5, §16-5O-6, §16-5O-7, §16-5O-8 and §16-5O-10 of the
Code of West Virginia, 1931, as amended, all relating to
regulating the performance of health maintenance tasks by
unlicensed personnel in certain personal care facilities;
providing exceptions; identifying who may perform health
maintenance tasks; requiring record keeping; requiring the
administrative monitoring system to have input from registered
professional nurses; requiring liability insurance; changing
the short title; defining terms; and authorizing rule-making.
Be it enacted by the Legislature of West Virginia:
That §16-5O-1, §16-5O-2, §16-5O-3, §16-5O-4, §16-5O-5,
§16-5O-6, §16-5O-7, §16-5O-8 and §16-5O-10 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
MEDICATION ADMINISTRATION OF MEDICATION AND PERFORMANCE OF HEALTH MAINTENANCE TASKS BY
§16-5O-1. Short title.
This article may be cited as the
"medication Administration by
unlicensed Personnel act" "Ken Ervin Community Living Act."
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 assistance with regard to
each medication administered, including the time, route and amount
taken. However, 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
(d) "Facility" means an ICF/ID, assisted living, behavioral
health group home, private residence in which health care services
and health maintenance tasks are provided under the supervision of
a registered nurse or an adult family care home that is licensed by
or approved by the department.
(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) "Health maintenance tasks" means performing the following
tasks according to the legibly written or printed directions of the
attending physician or authorized practitioner, or as written on
the prescription label, and making a written record of that
assistance with regard to each medication administered, including
the time, route and amount taken:
_(1) Administering glucometer tests;
_(2) Administering gastrostomy tube feedings;
_(3) Administering enemas;
_(4) Performing ostomy care (including skin care and changing
_(5) Administering nebulizer treatment;
_(6) Administering oxygen therapies; and
_(7) Performing ventilator and tracheostomy tube respiratory
care and suctioning.
However, for purposes of this article, "performing health
maintenance tasks" 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.
(g) (h) "ICF/ID" means an intermediate care facility for
individuals with an intellectual disability which is certified by
(h) (i) "Location of medication administration or location
where health maintenance tasks are performed" means a facility or
location where the resident requires administration of medication
or assistance in taking medications or the performance of health
(i) (j) "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
(j) (k) "Registered professional nurse" means a person who
holds a valid license pursuant to article seven, chapter thirty of
(k) (l) "Resident" means a resident of a facility, who for
purposes of this article is in a stable condition.
(l) (m) "Secretary" means the Secretary of the Department of
Health and Human Resources or his or her designee.
(m) (n) "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
(n) (o) "Self-administration of medication with assistance"
means assisting residents who are otherwise able to self administer
their own medications except their physical disabilities prevent
them from completing one or more steps in the process.
(p) "Stable" means the individual's medical condition is
predictable and consistent as determined by the registered
(o) (q) "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 performance
of health maintenance tasks; maintenance of liability
insurance in facilities.
(a) In order to safeguard the well-being and preserve the
dignity of people who need assistance to live in their community,
the secretary is authorized to establish and implement a program
for the administration of medications and performance of health
maintenance tasks in locations covered by this article in locations
of medication administration where the resident requires
administration of or assistance in taking medications or
performance of health maintenance tasks. The program shall be
developed and conducted in cooperation with the appropriate
agencies, advisory bodies and boards.
(b) Administration of medication or performance of health
maintenance tasks pursuant to this article shall be performed only
(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.
(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 or perform health maintenance tasks if the
(1) Has been trained pursuant to the requirements of this
(2) Is considered by the registered professional nurse to be
(3) Consults with the registered professional nurse or
attending physician on a regular basis; and
(4) Is monitored or supervised by the registered professional
(d) Any agency or facility providing services covered by this
article shall maintain liability insurance for the registered
professional nurse, other licensed health care provider and any
facility staff member who has been trained and is employed to
administer medication or perform health maintenance tasks pursuant
to this article.
(d) (e) Nothing in this article may be construed to prohibit any facility staff member from administering medications or
performing health maintenance tasks or providing any other prudent
emergency assistance to aid any person who is in acute physical
distress or requires emergency assistance.
(e) (f) 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
§16-5O-4. Exemption from licensure; statutory construction.
(a) Any individual who is not otherwise authorized by law to
administer medication or perform health maintenance tasks may
administer medication or perform health maintenance tasks in
locations covered by this article if he or she meets the
requirements and provisions of this article. Any person who
administers medication or perform health maintenance tasks pursuant
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
(c) Notwithstanding any other provision of law to the
contrary, this article shall not be construed to violate or be in
any of the provisions of articles seven or seven-a, chapter thirty of this code.
(d) Any parent or guardian may administer medication to, or
perform health maintenance tasks for, his or her adult or minor
child regardless of whether or not the parent or guardian receives
compensation for caring for said child.
§16-5O-5. Instruction and training.
(a) The Office of Health Facility Licensure and Certification
shall establish a council of nurses to represent the facilities and
registered professional nurses affected by
the provisions of this
article. The council of nurses shall prepare a procedural manual
and recommendations regarding a training course to the Secretary of
the Department of Health and Human Resources. The council shall
meet every two years to review the training curricula, competency
evaluation procedures and rules implemented by the secretary, and
shall make recommendations as deemed necessary.
(b) The department shall develop and approve training
curricula and competency evaluation procedures for facility staff
members who administer medication or perform health maintenance
tasks pursuant to
the provisions of this article. The department
shall consider the recommendations of the council of nurses and
shall consult with the West Virginia Board of Examiners for
Registered Nurses in developing the training curricula and
competency evaluation procedures.
(c) The program developed by the department shall require that any person who applies to act as a facility staff member authorized
to administer medications or perform health maintenance tasks
the provisions of this article shall:
(1) Hold a high school diploma or general education diploma;
(2) Be trained or certified in cardiopulmonary resuscitation
and first aid;
(3) Participate in the initial training program developed by
(4) Pass a competency evaluation developed by the department;
(5) Subsequent to initial training and evaluation, participate
in a retraining program every two years.
(d) Any facility may offer the training and competency
evaluation program developed by the department to its facility
staff members. The training and competency programs shall be
provided by the facility through a registered professional nurse.
(e) A registered nurse who is authorized to train facility
staff members to administer medications or perform health
maintenance tasks in facilities shall:
(1) Possess a current active West Virginia license in good
standing to practice as a registered nurse;
(2) Have practiced as a registered professional nurse in a
position or capacity requiring knowledge of medications and the
performance of health maintenance tasks for the immediate two years prior to being authorized to train facility staff members; and
(3) Be familiar with the nursing care needs of residents of
facilities as described in this article.
§16-5O-6. Availability of records; eligibility requirements of
(a) Any facility which authorizes unlicensed staff members to
administer medications or perform health maintenance tasks pursuant
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 or perform health maintenance tasks in a
single specific agency only after compliance with all of the
(1) The staff member has successfully completed a training
program and received a satisfactory competency evaluation as
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
§16-5O-7. Oversight of medication administration and performance
__of health maintenance tasks by unlicensed personnel.
(a) Each facility in which medication is administered or
health maintenance tasks are performed by unlicensed personnel
shall establish in policy an administrative monitoring system. The
specific requirements of the administrative policy shall be
established by the department, in consultation with registered
professional nurses supervising delegated tasks, through rules
proposed pursuant to section eleven of this article. These rules
shall include specific instructions on whom to contact should any
condition occur that might create a risk to the resident's health
or safety, and training on how to handle these situations.
(b) Monitoring of facility staff members authorized pursuant to this article shall be performed by a registered professional
nurse employed or contracted by the facility.
§16-5O-8. Withdrawal of authorization.
The registered professional nurse who monitors or supervises
the facility staff members authorized to administer medication or
perform health maintenance tasks pursuant to this article may
withdraw authorization for a facility staff member if the nurse
determines that the facility staff member is not performing
medication administration or health maintenance tasks in accordance
with the training and written instructions. The withdrawal of the
authorization shall be documented and shall be relayed to the
facility and the department in order to remove the facility staff
member from the list of authorized individuals.
§16-5O-10. Limitations on medication administration or performance
__health maintenance tasks.
__The following limitations apply to the administration of
medication or performance of health maintenance tasks by facility
(a) Injections or any parenteral medications may not be
administered, except that prefilled insulin or insulin pens may be
(b) Irrigations or debriding agents used in the treatment of
a skin condition or minor abrasions may not be administered;
(c) No verbal medication orders may be accepted, no new medication orders shall be transcribed and no drug dosages may be
converted and calculated; and
(d) No medications ordered by the physician or a health care
professional with legal prescriptive authority to be given "as
needed" may be administered unless the order is written with
specific parameters which preclude independent judgment.
NOTE: The purpose of this bill is to regulate the performance
of health maintenance tasks by unlicensed personnel in certain
personal care facilities. The bill changes the short title to the
"Ken Ervin Community Living Act." The bill requires liability
insurance in certain instances. The bill defines terms. The bill
provides exceptions. The bill requires the administrative
monitoring system to have input from registered professional
nurses. The bill authorizes rule-making.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would