W. Va. Code R. § 64-59-3 - Definitions

3.1. Administrator. -- The chief executive officer of the mental health facility.

3.2. Chemical Restraint. -- A drug or medication that is not used as a standard treatment for the patient's medical or psychiatric condition or that is used solely as a means of coercion, discipline, convenience, or retaliation, and that results in restricting the patient's freedom of movement.

3.3. Clinical director or chief medical officer. - The person who has the responsibility for decisions involving clinical and medical treatment of patients in a mental health facility in accordance with W. Va. Code § 27-1-7.

3.4. C.F.R. -- References to the Code of Federal Regulations herein, and subsections thereto, refer to regulations in effect as follows:

3.4.1. 42 C.F.R. § 482.13, effective November 29, 2019;

3.4.2. 42 C.F.R. § 482.24, effective June 30, 2020;

3.4.3. 42 C.RR. § 482.28, effective July 11, 2014;

3.4.4. 42 C.RR. § 482.41, effective July 5, 2016;

3.4.5. 42 C.RR. § 482.42, effective September 2, 2020;

3.4.6. 42 C.RR. § 482.61, effective June 30, 2020; and

3.4.7. 42 C.RR. § 482.62, effective October 26, 2007.

3.5. Facility. -- A mental health facility that treats patients as defined herein.

3.6. FDA Food Code. -- The Federal Food Code, also known as the 2017 Recommendations of the United States Public Health Service, Food and Drug Administration, is published by the U.S. Food and Drug Administration. The FDA Food Code is accessible at https://www.fda.gov/food/fda-food-code/food-code-reference-system.

3.7. Individualized Treatment Plan (IPP). - A treatment plan to promote the discharge of a patient that is prepared and maintained in accordance with 42 C.F.R. § 482.61.

3.8. Legal Representative. --

3.8.1. A conservator, temporary conservator or limited conservator appointed pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code, § 44A-1-1 et seq., within the limits set by the order;

3.8.2. A guardian, temporary guardian or limited guardian appointed pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code, § 44-1-1 et seq., within the limits set by the order;

3.8.3. An individual appointed as committee or guardian prior to June 9,1994, within the limits set by the appointing order and W. Va. Code § 44A-1-2(d);

3.8.4. A person having a medical power of attorney pursuant to the West Virginia Medical Power of Attorney Act, W. Va. Code § 16-30-1 et seq., within the limits set by the law and the appointment;

3.8.5. A representative payee under the U.S. Social Security Act, Title 42 US Code § 301 et seq., within the limits of the payee's legal authority;

3.8.6. A surrogate decision-maker appointed pursuant to the West Virginia Health Care Surrogate Act, W. Va. Code § 16-30-1 et seq., or the West Virginia Do Not Resuscitate Act, § 16-30C-1 et seq., within the limits set by the appointment;

3.8.7. An individual having a durable power of attorney pursuant to W. Va. Code § 39B-1-101 et seq., or a power of attorney under common law, within the limits of the appointment; or

3.8.8. An individual lawfully appointed in a similar or like relationship of responsibility for a patient under the laws of this state, or another state or legal jurisdiction, within the limits of the applicable statute and appointing authority;

3.8.9. If a legal representative has been appointed for or designated by any patient as having the authority to exercise on behalf of the patient one or more of the patient's rights under this rule, the facility shall permit the individual's legal representative to act on behalf of the individual and to exercise the authority to the extent granted to the legal representative in the order or other document naming the legal representative or pursuant to the statute authorizing the legal representative and to the extent that the legal representative's acts are not hostile or adverse to the best interests of the patient. This provision does not relieve the facility of the responsibility of informing the individual patient as required by this rule, to the extent that the individual is capable of understanding the matter, nor does it in any way deprive the patient of his or her legal rights granted under this rule or state or federal law or rules and regulations. If the patient has a legal representative, the name, address and telephone number of the legal representative shall be recorded in the patient's financial and clinical records, as applicable, along with the nature and scope of the authority granted to the legal representative by order, appointment or law. The facility shall also maintain a copy of the document documenting or designating the legal representative. The facility administrator and staff should note that the various types of legal representatives do not necessarily have the lawful authority to act on behalf of the resident in all matters which may require action by a legal representative. For example, a conservator may have responsibility for financial affairs, but not personal affairs, such as medical care.

3.9. Mechanical Restraints. -- Restraining devices of any type or form in accordance with 42 C.F.R. § 482.13(e). Restraining devices used solely as a means of coercion, discipline, convenience, or retaliation are prohibited.

3.10. Mental Health Facility. -- A state-operated psychiatric hospital that is accredited by The Joint Commission and licensed in accordance with W.Va. C.S.R. § 64-12-1 et seq.

3.11. Neglect. -- Actions of omission or commission within the meaning of W. Va. Code § 9-6-1(3), that violate 42 C.F.R § 482.13, or that constitute a breach of the applicable standard of care, including the failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.

3.12. Patient. -- Any individual receiving treatment or services in or from a mental health facility who has been committed to the facility in accordance with W. Va. Code § 27-5-1 et seq., or W. Va. Code § 27-6A-1 et seq., or both.

3.13. Physical Abuse. -- Actions of omission or commission within the meaning of W. Va. Code § 9-6-1(2), that violate 42 C.F.R. § 482.13, or that constitute a breach of the applicable standard of care. Physical abuse includes, but is not limited to, the infliction or threat to inflict physical pain or injury on, or the imprisonment of any patient, including pain associated with mental abuse, verbal abuse, sexual abuse, involuntary seclusion or any physical or chemical restraint not required to treat the patient's clinical symptoms, regardless of the patient's ability to understand or recognize the abuse or the willful infliction of injury, unreasonable confinement, intimidation, or punishment, with resulting physical harm, pain, or mental anguish, including staff neglect or indifference to infliction of injury or intimidation of one patient by another.

3.14. Seclusion. -- Actions or conduct defined by 42 C.F.R. § 482.13. Seclusion used solely as a means of coercion, discipline, convenience, or retaliation is prohibited.

3.15. Secretary. -- The Secretary of the West Virginia Department of Health and Human Resources.

3.16. Sexual Harassment. -- Physical advances or, nonverbal conduct that is sexual in nature that is either:

(1) unwelcome, offensive, or creates a hostile environment, when the staff member is aware or has been informed that his or her conduct falls into one of these categories; or

(2) is sufficiently severe or intense to be abusive to a reasonable person in the particular context.

3.17. State Operations Manual. -- The State Operations Manual Appendix A - Survey Protocol, Regulations and Interpretive Guidelines for Hospitals published by the Centers for Medicare and Medicaid Services, Rev. 200, 02-21-20. The State Operations Manual is accessible at https://www.cms.gov.

3.18. Verbal Abuse. -- Conduct that violates 42 C.F.R. § 482.13 or that constitutes a breach of the applicable standard of care. Verbal abuse includes, but is not limited to, the use of oral, written or gestured language or tone that is disparaging, frightening, humiliating, and/or derogatory to patients or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability.

Notes

W. Va. Code R. § 64-59-3