Summary
A majority of the nursing home state licensure rule is duplicative of the federal requirements and substantively the same. The following is a list of areas where the state rule has set forth specific requirements where the federal counterpart makes a generic statement, or the state rule has slight additional requirements in areas the federal counterpart does not extend:
• Resident Rights: State rule provides additional residents’ rights in certain areas and provides specific requirements as to the assurance of financial security of the facility where the federal counterpart states such assurance must be “satisfactory to the Secretary.” Additionally, the state provides specific requirements for re-admitting a former resident when there was no bed-hold or a bed-hold has expired, and the federal counterpart states that the facility must have a policy for such situation. Finally, the state rule provides specific circumstances and situations that must be present when restraints on a resident are authorized in writing by a physician for specified and limited periods of time. The federal counterpart to this requirement merely states that the resident has a right to be free from restraints when not required to treat medical symptoms, but is silent as to what requirements must be met when restraints are necessary to treat medical symptoms.
o Federal Counterpart 42 C.F.R. §§ 483.10(c) and (d), 483.12(a) and (b), and 483.13(b)
• Quality of Life: Some additional rights found in state law include the retention of personal possession to make a resident’s room more homelike, the ability to practice religion of choice, the participation in planning of care and treatment, the refusal of certain visitors, and the required nursing home response to resident and family councils. In addition, state law imposes an additional requirement for the director of the activities program to demonstrate the ability to provide ongoing programs together with completion of a training course approved by the state.
o Federal Counterpart: 42 C.F.R. §§483.10(j) and 483.15(b), (c), and (f)
• Quality of Care: State rule provides that the nursing home shall evaluate residents having the potential to benefit from assistive devices for feeding to assure the devices are meeting the resident’s needs. The federal counterpart is silent as to the continued evaluation of the use of assistive devices and merely requires that the nursing home provide the same. The state rule requires that the nursing home complete and maintain specific information on any accidents involving residents, where the federal counterpart does not have this requirement. The state rule requires a specified number of nursing personnel per time per resident per day, where the federal counterpart is not specific but has a general requirement that it must meet resident needs. The state rule provides two qualifications for a dietitian. The first requirement is the same as the federal counterpart. The second requirement states that the individual “is qualified as defined by the West Virginia Board of Licensed Dietitians, and is licensed by that board to provide professional nutritional services in West Virginia.” The federal counterpart is more generic and states the individual may be qualified “on basis of education, training, or experience in identification of dietary needs, planning, and implementation of dietary programs.” The state rule, in addition to the same federal requirements, provides specific maximum and minimum temperatures for food storage and holding of hot and cold foods. The state rule requires that substances regarded as herbal products and dietary supplements be included in a drug regimen review and that such review must take place on site at the nursing home. The federal counterpart does not state that herbal products and dietary supplements must be included in this review and is silent on where the review must take place.
o Federal Counterpart: 42 C.F.R. §§ 483.25(k), 483.30(a) and (b), 483.35(a), (f), (g) and (i), 483.40(c), 483.60(c) and 483.65
• Physical Facilities, Equipment and Site Information: In addition to the same requirements as the federal counterpart, the state rule specifies that window coverings in resident rooms must be provided by the nursing home. Additionally the federal counterpart is silent as to who may apply pesticides at a nursing home, where the state rule provides that pesticides only be applied “by an applicator certified by the West Virginia Department of Agriculture or a registered technician operating under the supervision of a certified applicator.”
o Federal Counterpart: 42 C.F.R. §§483.30(b), 483.70(a) and (h)
Before the licensure rule can be updated and amended to reflect accurate licensure regulations, processes, and requirements, the licensure statute/code sections must be updated and amended. The state agency is willing to address and correct some of the duplicative regulations for this facility type.
