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, §16-5O-10 and
§16-5O-11 of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto a new section, designated
§16-5O-12, 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
including health maintenance tasks; requiring legislative
rules necessary to implement the article; and the creation of
an advisory committee to review definition of health
maintenance tasks, along with polices and procedures
authorized by the article. 

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, §16-5O-10 and §16-5O-11 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 §16-5O-12, all to read as follows:

ARTICLE 50.ADMINISTRATION OF MEDICATION AND PERFORMANCE OF
HEALTH MAINTENANCE TASKS BY UNLICENSED PERSONNEL. 

§16-5O-1.  Short title. 

This article may be cited as the "Medication Administration by
Unlicensed Personnel Act. "“Ken Ervin Community Living Act.” 

§16-5O-2.  Definitions. 

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, or monitoring of medication or self-administration of
medications, includingsuch as prescription drugs and self-injection of medication by the resident. 

(b) "Authorizing agency" means the department's officeOffice
of Health Facility Licensure and Certification within the
Department of Health and Human Resources. 

(c) "Department" means the Department of Health and Human
Resources. 

(d) "Facility" means an ICF/IDintermediate care facility for
individuals with an intellectual disability, 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 professional nurse as defined in
article seven, chapter thirty of this codeor 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 thehis or her scope of practice.a professional license or
certificate. 

(g) “Health maintenance tasks” means performing the following
tasks according to the legibly written or printed directions of a
physician licensed under the provisions of article two-A, chapter
thirty of this code or article fourteen, chapter thirty of this
code, or other authorized practitioner, or as written on the
prescription label, and making a written record of that assistance
with regard to each health maintenance task administered, including
the time, route and amount taken:

“Health maintenance tasks” do not include judgment,
evaluation, assessments, injections of medication, or monitoring of
medication or self-administration of medications, such as
prescription drugs and self-injection of medication by the
resident. 

(g) "ICF/ID" means an intermediate care facility for
individuals with an intellectual disability which is certified by
the department. 

(h) ”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
maintenance tasks. 

(i) "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) "Registered professional nurse" means a person who holds
a valid license pursuant to article seven, chapter thirty of this
code. 

(k) "Resident" means a resident of a facility who for purposes
of this article, is in a stable condition. 

(l) "Secretary" means the Secretary of the Department of
Health and Human Resources or his or her designee. 

(m) "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 circumstances. 

(n) “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
professional nurse. 

(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. 

(a) The secretary is authorized toshall 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
by:

(1) Registered professional nurses;

(2) Other(1) Licensed health care professionals; or

(3)(2) 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 After 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 staff member:

(1) Has been trained pursuant to the requirements of this
article;

(2) Is considered by the registered professional nurse to be
competent;

(3) Consults with the registered professional nurse or
attending physician on a regular basis; and

(4) Is monitored or supervised by the registered professional
nurse. 

(d) An agency or facility employing a health care provider
licensed pursuant to the provisions of chapter thirty of this code
for the purposes of supervising the administration of medication or
performance of health maintenance tasks shall maintain liability
insurance for the 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
health care. 

§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 pursuant to the provisions of this article
shall beand is 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
licensing laws. 

(c) Notwithstanding any other provision of law to the
contrary, this article shall not be construed to violate or be in
conflict with 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
pursuant to 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
the department;

(4) Pass a competency evaluation developed by the department;
and

(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 professional 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 as set
forth in article seven chapter thirty of this code 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. 

(a) Any facility which authorizes unlicensed staff members to
administer medications or perform health maintenance tasks pursuant
to the provisions of this article shall make available to the
authorizing agency a list of the individual facility staff members
authorized to administer medications or perform health maintenance
tasks. 

(b) AAny 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
following:

(1) The staff member has successfully completed a training
program and received a satisfactory competency evaluation as
required by 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 legislative rules
adopted pursuant to this article and such other criteria, including
minimum competency requirements, as are specified by the
authorizing agency. 

(a) EachAny facility in which medication is administered or
health maintenance tasks performed by unlicensed personnel shall
establish in policy an administrative monitoring system in
administrative policy.  The specific requirements of the
administrative policy shall be established by the department,
through legislative rules.  proposed pursuant to section eleven of
this article. These rules shall be developed in consultation with
the West Virginia Board of Examiners for Registered Nurses, the
West Virginia Nurses Association, the West Virginia Statewide
Independent Living Council, and the West Virginia Board of
Respiratory Care.  These rules are required to include, at a
minimum, instructions on protocols for contacting an appropriate
healthcare professional in situations where a condition arises
which may create a risk to the resident’s health and safety.  These
rules shall also include the type and frequency of monitoring and
training requirements for management of these occurrences. 

(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, who shall exercise
judgment, evaluate and assess the patient, inject medicine, and
monitor medications, self-administration of medications and self-injections by the resident in accordance with his or her scope of
practice. 

§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 taskspursuant 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. 

The following limitations apply to the administration of
medication or performance of health maintenance tasks by facility
staff members:

(a) Injections or any parenteral medications may not be
administered, except that prefilled insulin or insulin pens may be
administered;

(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. 

§16-5O-11.  Rules. 

(a) The department shall promulgate emergency rules pursuant
to the provisions of section fifteen, article three, chapter
twenty-nine-a of this code as may be necessary to implement the
provisions changes of this article. 

(b) Subsequently, The department mayshall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code. 

§16-5O-12.  Advisory Committee. 

(a) There is hereby established an advisory committee to
assist the Legislature in the development of the definition of
health maintenance care and associated tasks, along with polices
and procedures, in order to safeguard the well-being, preserve the
dignity of persons who need assistance to live in their communities
and avoid institutionalization in this state or out of state. 

(b) (1) The advisory committee shall consist of seven voting
members as follows:

(A) The chairs of the Senate and House Committees on Health
and Human Resources, who shall co-chair the committee. 

(B) The Secretary or his or her designee;

(C) One representative of the West Virginia Statewide
Independent Living Council;

(D) One representative of the West Virginia Developmental
Disability Council;

(E) One representative of the West Virginia Board of
Respiratory Care; and

(F) One representative of the West Virginia Society for
Respiratory Care. 

(2) The advisory committee shall also include three non-voting
members as follows:

(A) One representative of the West Virginia Board of Examiners
for Registered Professional Nurses;

(B) One representative of the West Virginia Nurses
Association; and

(C) One physician with expertise in respiratory medicine to be
chosen by the West Virginia Board of Respiratory Care. 

(c) The advisory committee shall meet at least one time each
month and shall, on or before December 1, 2013, make
recommendations on the need for further legislation, policies or
procedures regarding health maintenance tasks. 

(d) Members of the committee shall be reimbursed their
reasonable expenses pursuant to the rules promulgated by the
department of administration for the reimbursement of expenses of
state officials and employees and shall receive no other
compensation for their services.