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.