H. B. 2568
(By Delegates M. Poling and Eldridge)
[Introduced February 17, 2009; referred to the
Committee on Senior Citizen Issues then the Judiciary.]
A BILL to amend and reenact §16-5C-3 of the Code of West Virginia,
1931, as amended; and to amend and reenact §16-5D-3 of said
code, all relating to requiring background checks on
applicants for residence in nursing homes and assisted living
residences; and providing for special arrangements for
applicants who are sex offenders or certain convicted felons.
Be it enacted by the Legislature of West Virginia:
That §16-5C-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §16-5D-3 of said code be amended
and reenacted, all to read as follows:
ARTICLE 5C. NURSING HOMES.
§16-5C-3. Powers, duties and rights of director.
In the administration of this article, the director shall have
the following powers, duties and rights:
(a) To enforce rules and standards promulgated hereunder for nursing homes;
(b) To exercise as sole authority all powers relating to the
issuance, suspension and revocation of licenses of nursing homes;
(c) To enforce rules promulgated hereunder governing the
qualification of applicants for nursing home licenses, including,
but not limited to, educational requirements, financial
requirements, personal and ethical requirements;
(d) To receive and disburse federal funds and to take whatever
action not contrary to law as may be proper and necessary to comply
with the requirements and conditions for the receipt of such
federal funds;
(e) To receive and disburse for authorized purposes any moneys
appropriated to the Division of Health by the Legislature;
(f) To receive and disburse for purposes authorized by this
article, any funds that may come to the Division of Health by gift,
grant, donation, bequest or devise, according to the terms thereof,
as well as funds derived from the Division of Health's operation,
or otherwise;
(g) To make contracts, and to execute all instruments
necessary or convenient in carrying out the director's functions
and duties; and all such contracts, agreements and instruments
shall be executed by the director;
(h) To appoint officers, agents, employees and other personnel
and fix their compensation;
(i) To offer and sponsor educational and training programs for
nursing homes for clinical, administrative, management and
operational personnel;
(j) To undertake survey, research and planning projects and
programs relating to administration and operation of nursing homes
and to the health, care, treatment and service in general of such
homes;
(k) To assess civil penalties for violations of facility
standards, in accordance with section ten of this article;
(l) To inspect any nursing home and any records maintained
therein that are necessary to determine compliance with licensure
laws or Medicare or Medicaid certification, subject to the
provisions of section ten of this article;
(m) To establish and implement procedures, including informal
conferences, investigations and hearings, subject to applicable
provisions of article three, chapter twenty-nine-a of this code,
and to enforce compliance with the provisions of this article and
with rules issued hereunder;
(n) To subpoena witnesses and documents, administer oaths and
affirmations, and to examine witnesses under oath for the conduct
of any investigation or hearing. Upon failure of a person without
lawful excuse to obey a subpoena to give testimony and upon
reasonable notice to all persons affected thereby, the director may
apply to the circuit court of the county in which the hearing is to be held for an order compelling compliance;
(o) To make complaint or cause proceedings to be instituted
against any person or persons for the violation of the provisions
of this article or of rules issued hereunder. Such action may be
taken by the director without the sanction of the prosecuting
attorney of the county in which proceedings are instituted, if the
officer fails or refuses to discharge his or her duty. The circuit
court of the county in which the conduct has occurred or, if
emergency circumstances require, the circuit court of Kanawha
County shall have jurisdiction in all civil enforcement actions
brought under this article and may order equitable relief without
bond. In no such case may the director or any person acting under
the director's direction be required to give security for costs;
(p) To delegate authority to the director's employees and
agents to perform all functions of the director except the making
of final decisions in adjudications;
(q) To submit an annual report to the Governor, the
Legislature and the public sixty days before the Governor is
required to submit an annual budget report to the Legislature.
The report shall describe the licensing and investigatory
activities of the department during the year, and the nature and
status of other activities of the department, and may include
comment on the acts, policies, practices or procedures of any
public or private agency that effect the rights, health or welfare of residents of nursing homes. The annual report shall include a
list of all nursing homes in the state, whether such homes are
proprietary or nonproprietary; the name of the owner or owners; the
total number of beds; the number of private and semiprivate rooms;
the costs per diem for private residents; the number of full-time
employees and their professions; recreational programs; services
and programs available as well as the costs thereof; and whether or
not those nursing homes listed accept Medicare and Medicaid
residents. The report shall also contain the department's
recommendations as to changes in law or policy which it deems
necessary or appropriate for the protection of the rights, health
or welfare of residents of nursing homes in the state;
(r) To establish a formal process for licensed facilities to
file complaints about the survey process or surveyors; and
(s) To establish a committee to study and make a
recommendation to the Legislature on a central reporting system for
allegations of abuse; and
(t) To establish a formal process for licensed facilities to
make background checks for applicants as residents of nursing homes
in the state and to make special arrangements for the placement of
applicants who are subject to the Sex Offender Registration Act
governed by the provisions of article twelve, chapter fifteen of
this code or who have been previously convicted of a felony
involving violence or the use of a deadly weapon.
ARTICLE 5D. ASSISTED LIVING RESIDENCES.
§16-5D-3. Powers, duties and rights of secretary.
In the administration of this article, the secretary has the
following powers, duties and rights:
(a) To enforce rules and standards for assisted living
residences which are adopted, promulgated, amended or modified by
the secretary;
(b) To exercise as sole authority all powers relating to the
issuance, suspension and revocation of licenses of assisted living
residences;
(c) To enforce rules adopted, promulgated, amended or modified
by the secretary governing the qualification of applicants for
assisted living residences, including, but not limited to,
educational requirements, financial requirements, personal and
ethical requirements;
(d) To receive and disburse federal funds and to take whatever
action not contrary to law as may be proper and necessary to comply
with the requirements and conditions for the receipt of federal
funds;
(e) To receive and disburse for authorized purposes any moneys
appropriated for the division by the Legislature;
(f) To receive and disburse for purposes authorized by this
article, any funds that may come to the division by gift, grant,
donation, bequest or devise, according to the terms thereof, as well as funds derived from the division's operation or otherwise;
(g) To make contracts and to execute all instruments necessary
or convenient in carrying out the secretary
's functions and duties;
and all such contracts, agreements and instruments shall be
executed by the secretary
;
(h) To appoint officers, agents, employees and other personnel
and fix their compensation;
(i) To offer and sponsor educational and training programs for
assisted living residences' administrative, management and
operational personnel;
(j) To undertake survey, research and planning projects and
programs relating to administration and operation of assisted
living residences and to the health, care, treatment and service in
general of residents of assisted living residences;
(k) To assess civil penalties for violations of assisted
living residence standards in accordance with section ten of this
article;
(l) To inspect any assisted living residence and any records
maintained therein subject to the provisions of section ten of this
article;
(m) To establish and implement procedures, including informal
conferences, investigations and hearings, subject to applicable
provisions of article three, chapter twenty-nine-a of this code,
and to enforce compliance with the provisions of this article and with rules issued hereunder by the secretary;
(n) To subpoena witnesses and documents, administer oaths and
affirmations and to examine witnesses under oath for the conduct of
any investigation or hearing. Upon failure of a person without
lawful excuse to obey a subpoena to give testimony and upon
reasonable notice to all persons affected thereby, the secretary
may apply to the circuit court of the county in which the hearing
is to be held or to the circuit court of Kanawha County for an
order compelling compliance;
(o) To make complaint or cause proceedings to be instituted
against any person for the violation of the provisions of this
article or of rules issued hereunder by the secretary. Such action
may be taken by the secretary
without the sanction of the
prosecuting attorney of the county in which proceedings are
instituted if the prosecuting attorney fails or refuses to
discharge his or her duty. The circuit court of Kanawha County or
the circuit court of the county in which the conduct has occurred
shall have jurisdiction in all civil enforcement actions brought
under this article and may order equitable relief without bond. In
no such case may the secretary or any person acting under the
secretary's direction be required to give security for costs;
(p) To delegate authority to the secretary's employees and
agents to perform all functions of the secretary except the making
of final decisions in adjudications; and
(q) To submit an annual report to the Governor, the
Legislature and the public. The report shall describe the assisted
living residence licensing and investigatory activities of the
division during the year and the nature and status of other
activities of the division and may include comment on the acts,
policies, practices or procedures of any public or private agency
that affect the rights, health or welfare of residents of assisted
living residences. The annual report shall include a list of all
assisted living residences in the state and such of the following
information as the secretary determines to apply: Whether the
assisted living residences are proprietary or nonproprietary; the
classification of each assisted living residence; the name of the
owner or owners; the total number of beds; the number of private
and semiprivate rooms; the costs per diem for private residents;
the number of full-time employees and their professions;
recreational programs; services and programs available as well as
the costs thereof; and whether or not those assisted living
residences listed accept Medicare and Medicaid residents. The
report shall also contain the division's recommendations as to
changes in law or policy which it deems necessary or appropriate
for the protection of the rights, health or welfare of residents of
assisted living residences in the state.
(r) To establish a formal process for licensed facilities to
make background checks for applicants as residents of assisted living residences in the state and to make special arrangements for
the placement of applicants who are subject to the Sex Offender
Registration Act governed by the provisions of article twelve,
chapter fifteen of this code or who have been previously convicted
of a felony involving violence or the use of a deadly weapon.
NOTE: The purpose of this bill is to require background checks
on applicants for residence in nursing homes and assisted living
residences; and to provide for special arrangements for applicants
who are sex offenders or certain convicted felons.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.