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Introduced Version House Bill 2427 History

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H. B. 2427

 

         (By Delegates Williams, Morgan, Ennis, Moye,

                    C. Miller and Rowan)


         [Introduced January 12, 2011; referred to the

         Committee on Senior Citizen Issues then the Judiciary.]

 

 

A BILL to amend and reenact §16-5C-12 and §16-5C-13 of the Code of West Virginia, 1931, as amended, all relating to nursing homes; administrative appeals; complaint hearing procedures; establishing an independent disputes resolution process for nursing homes; clarifying the informal and formal review process; and clarifying the judicial review process.

Be it enacted by the Legislature of West Virginia:

    That §16-5C-12 and §16-5C-13 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 5C. NURSING HOMES.

§16-5C-12. Administrative appeals.

    (a) Any licensee or applicant aggrieved by an order issued pursuant to sections five, six, ten or eleven of this article shall have the opportunity to request an informal and formal hearing at which the licensee or applicant may contest such order as contrary to law or unwarranted by the facts or both. All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern such hearing and the administrative procedures in connection with any formal hearing.

    The director may impose the following prior to or during the pendency of a hearing:

    (1) A reduction in the bed quota pursuant to section eleven of this article;

    (2) Transfer of residents and a ban on new admissions pursuant to section eleven of this article.

    (b) Informal hearings shall be held within twenty working days of the director's receipt of timely request for appeal, unless the licensee or applicant aggrieved by the order consents to a postponement or continuance. In no event may the informal hearing occur more than thirty business days after the director receives timely request for appeal. At the informal hearing, neither the licensee or applicant nor the director may be represented by an attorney. Within ten days of the conclusion of the informal hearing, the director shall issue an informal hearing order, including a basis for the decision.

    (c) If the applicant or licensee requested a formal hearing only, the director and the licensee shall proceed in accordance with the provisions of the department of health rules of procedure for contested case hearings and declaratory rulings. If the applicant or licensee also requested an informal hearing and if the order is not favorable to the applicant or licensee, the director shall notify the administrative hearing examiner of the request for an appeal within five business days of issuing the informal hearing order.

    (a) Any licensee or applicant adversely affected by a cited deficiency or denial of an application may request an informal and formal hearing. The licensee or applicant may contest a cited deficiency or denial of an application as contrary to law or unwarranted by the facts or both.

    (b) The director shall contract with an independent third party to conduct informal dispute resolution (IDR) for facilities licensed under this article. This independent third party shall be accredited by the Utilization Review Accreditation Commission.

    (c) The informal dispute resolution process, including conferences, constitutes an informal administrative process and is not a formal evidentiary hearing. Use of informal dispute resolution does not waive the applicant’s or facility's right to a formal hearing.

    (d) The informal dispute resolution process consists of the following:

    (1) No later than ten working days following the last day of the survey, inspection or complaint investigation, the director shall by certified mail transmit to the facility a statement of deficiencies committed by the facility. Notification of the availability of an informal dispute resolution and an explanation of the informal dispute resolution process shall be included in the transmittal;

    (2) Within ten calendar days of receipt of the statement of deficiencies, the facility shall return a plan of correction to the director. Within the ten-day period, the facility may request in writing an informal dispute resolution conference to refute the deficiencies cited in the statement of deficiencies;

    (3) Within ten working days of receipt of the written request for a request for an informal dispute resolution conference or formal hearing made by a facility, the independent third party shall hold an informal dispute resolution conference unless otherwise requested by the facility. The informal dispute resolution conference provides the facility with an opportunity to provide additional information or clarification in support of the facility's contention that the deficiencies were erroneously cited.

    (4) The facility may be accompanied by counsel during the IDR conference. The type of informal dispute resolution held is at the discretion of the facility, but is limited to:

    (A) A desk review of written information submitted by the facility; or

(B) A telephonic conference; or

    (C) A face-to-face conference held at the facility.

    (5) If the independent third party determines the need for additional information, clarification, or discussion after conclusion of the informal dispute resolution conference, the division and the facility shall present requested information or shall be present.

    (6) Within ten days of the informal dispute resolution conference, the independent third party shall provide or make a determination, based upon the facts and findings presented, and shall transmit the decision and rationale for the outcome in writing to the facility and the division.

    (7) If the director disagrees with the determination, the director shall reject the determination made by the third party then transmit the director's decision and rationale for the reversal of the independent third party's decision to the facility within ten calendar days of receiving the independent third party's decision.

    (8) If the independent third party determines that the original statement of deficiencies should be changed as a result of the informal dispute resolution conference and the director supports the determination, the director shall transmit a revised statement of deficiencies to the facility with the notification of the determination within ten calendar days of the decision to change the statement of deficiencies.

    (9) Within ten calendar days of receipt of the determination made by the independent third party and the revised statement of deficiencies, the facility shall submit a revised plan of correction to the division.

    (10) The division may not post on its web site or enter data into the Centers for Medicare & Medicaid Services Online Survey, Certification and Reporting System, or report to any other agency, any information about the deficiencies which are in dispute unless the dispute determination is made and the facility has responded with a revised plan of correction, if needed.

    (f) If the applicant or licensee requests a formal hearing, the director and the licensee shall proceed in accordance with the provisions of article five, chapter twenty-nine-a of this code.

    (g) If the applicant or licensee also requested an informal hearing and if the order is not favorable to the applicant or licensee, the director shall notify the administrative hearing examiner of the request for an appeal within five business days of issuing the informal hearing order.

§16-5C-13. Judicial review.

    Any licensee adversely affected by an order of the director rendered after a hearing held in accordance with the provisions of section twelve of this article is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern with like effect as if the provisions of said section four were set forth in extenso in this section.

    The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

    Any licensee or applicant adversely affected by a decision of the director entered after a hearing may obtain judicial review of the decision in accordance with the provisions of section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with the provisions of article six, chapter twenty-nine-a of this code.

 



    NOTE: The purpose of this bill is to establish an independent dispute resolution process for nursing homes.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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