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Introduced Version Senate Bill 97 History

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Senate Bill No. 97

(By Senators Unger, Foster, Hall, Plymale and D. Facemire)

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[Introduced January 17, 2011; referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact §16-5C-12 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §16-5C-12a, all relating to nursing home 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 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 §16-5C-12a, all to read as follows:

ARTICLE 5C. NURSING HOMES.

§16-5C-12. Administrative appeals for civil assessments, license               limitation, suspension or revocation.

    (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 may request an informal hearing or the independent informal dispute resolution process, if applicable, and formal hearing at which the licensee or applicant may contest such the 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 a formal 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 an informal hearing, of the independent informal dispute resolution process or of a formal hearing:

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

    (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 and Human Resources rules of procedure for contested case hearings and declaratory rulings. If the applicant or licensee also requested an informal hearing or the independent informal dispute resolution process 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-12a. Independent informal dispute resolution process.

   (a) A facility or licensee adversely affected by an order or citation of a deficient practice issued pursuant to this article or by a citation issued for a deficient practice pursuant to federal law may request the independent informal dispute resolution process. A facility may contest a cited deficiency as contrary to law or unwarranted by the facts or both.

   (b) The director shall contract with at least five independent review organizations to conduct an independent informal dispute resolution process for facilities. The independent review organization shall be accredited by the Utilization Review Accreditation Commission.

   (c) The independent informal dispute resolution process is not a formal evidentiary proceeding and utilizing the independent informal dispute resolution process does not waive the facility's right to a formal hearing.

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

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

   (2) When the facility returns its plan to correct the cited deficiencies to the director, the facility may request in writing the independent informal dispute resolution process to refute the cited deficiencies;

   (3) Within five working days of receipt of the written request for the independent informal dispute resolution process made by a facility, the director shall refer the request to an independent review organization from the list of certified independent review organizations approved by the state. The director shall vary the selection of the independent review organization on a rotating basis. The director shall acknowledge in writing to the facility that the request for independent review has been received and forwarded to an independent review organization for review. The notice shall include the name and address of the independent review organization.

   (4) Within ten working days of receipt of the written request for the independent informal dispute resolution process made by a facility, the independent review organization shall hold an independent informal dispute resolution conference unless additional time is requested by the facility. Before the independent informal dispute resolution conference, the facility may submit additional information.

   (5) The facility may not be accompanied by counsel during the independent informal dispute resolution conference. The manner in which the independent informal dispute resolution conference is 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 or a mutually agreed upon location.

   (6) If the independent review organization determines the need for additional information, clarification or discussion after conclusion of the independent informal dispute resolution conference, the director and the facility shall present the requested information.

   (7) Within ten calendar days of the independent informal dispute resolution conference, the independent review organization shall provide and make a determination, based upon the facts and findings presented, and shall transmit a written decision containing the rationale for its determination to the facility and the director.

   (8) If the director disagrees with the determination, the director may reject the determination made by the independent review organization and shall issue an order setting forth the rationale for the reversal of the independent review organization's decision to the facility within ten calendar days of receiving the independent review organization's determination.

   (9) If the director accepts the determination, the director shall issue an order affirming the independent review organization’s determination within ten calendar days of receiving the independent review organization's determination.

   (10) If the independent review organization determines that the original statement of deficiencies should be changed as a result of the independent informal dispute resolution process and the director accepts the determination, the director shall transmit a revised statement of deficiencies to the facility within ten calendar days of the independent review organization's determination.

   (11) Within ten calendar days of receipt of the director’s order and the revised statement of deficiencies, the facility shall submit a revised plan to correct any remaining deficiencies to the director.

   (e) A facility has ten calendar days after receipt of the director’s order to request a formal hearing for any deficient practice cited under this article. If the facility requests a formal hearing, the director and the facility shall proceed in accordance with the provisions of article five, chapter twenty-nine-a of this code.

   (f) The facility is responsible for certain costs of the independent informal dispute resolution review under the following circumstances:

   (1) If the facility requests a face-to-face conference, the facility shall pay any costs incurred by the independent review organization that exceed the cost of a telephonic conference, regardless of which party ultimately prevails.

   (2) If the independent review organization's decision supports the originally written contested deficiency or adverse action taken by the director, the facility shall reimburse the director for the cost charged by the independent review organization.


   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.


   §16-5C-12a is new; therefore, strike-throughs and underscoring have been omitted.


    This bill was recommended for introduction and passage during the 2011 Regular Session of the Legislature by the Select Committee on PEIA, Seniors and Long Term Care.


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