H. B. 2823
(By Delegates P. White, Petersen and Doyle
)
(Originating in the House Committee on Finance)
[April 1, 1993]
A BILL to amend and reenact section two, article two-e, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
four, article five-b and section six, article five-c of said
chapter sixteen; and to amend and reenact section one,
article nine and section three, article seventeen of chapter
twenty-seven, all relating to licensure fees of birthing
centers, hospitals, nursing homes, personal care homes,
residential board and care homes, group residential
facilities, and hospitals, centers and institutions for the
care and treatment of the mentally ill or mentally retarded
or for the prevention of such disorders.
Be it enacted by the Legislature of West Virginia:
That section two, article two-e, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section four, article
five-b and section six, article five-c of said chapter sixteen be
amended and reenacted; and that section one, article nine andsection three, article seventeen of chapter twenty-seven be
amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 2E. BIRTHING CENTERS.
§16-2E-2. Birthing centers to obtain license, application,
fees, suspension, or revocation.
No person, partnership, association or corporation, or any
local governmental unit or any division, department, board or
agency thereof may operate a birthing center unless such
operation shall have been approved and licensed by the state
director of health in accordance with the provisions of this
article and the rules and regulations lawfully promulgated
hereunder provided that all birthing centers which are in
operation or which have received a certificate of need valid as
of the date of passage of this act shall be deemed to have been
so approved and shall be issued a license within thirty days of
passage of this act.
Any person, partnership, association or corporation, or any
local governmental unit or any division, department, board or
agency thereof desiring a license hereunder shall file with the
department of health an application in such form as the
department shall prescribe and furnish accompanied by a fee of
ten dollars. Such fee may by rule, proposed for promulgation
pursuant to article three, chapter twenty-nine-a of this code,
be increased by the director, and such fees shall be deposited in
accordance with section thirteen, article one of this chapter:
Provided,
That during the first year of implementation of the
increase in fees by legislative rule, the director may promulgateemergency rules. Information received by the department of
health under the provisions of this section shall be
confidential. The director of health is authorized to issue
licenses for the operation of birthing centers which are found to
comply with the provisions of this article and with all rules and
regulations promulgated by the department. The license issued
shall not be transferred or assignable. The director of health is
authorized to suspend or revoke a license issued hereunder if the
provisions of this article or of the rules and regulations are
violated.
Before any such license is suspended or revoked, however,
written notice shall be given the licensee, stating the grounds
of the complaint, and the date, time and place set for the
hearing on the complaint, which date shall not be less than
thirty days from the time notice is given. Such notice shall be
sent by registered mail to the licensee at the address where the
institution concerned is located. The licensee shall be entitled
to be represented by legal counsel at the hearing.
If a license is revoked as herein provided, a new
application for a license shall be considered by the director of
health if, when and after, the conditions upon which revocation
was based have been corrected and evidence of this fact has been
furnished. A new license shall then be granted after proper
inspection has been made and all provisions of this article and
rules and regulations promulgated hereunder have been satisfied.
All of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply to and govern any hearing
authorized and required by the provisions of this article and theadministrative procedure in connection with and following any
such hearing, with like effect as if the provisions of said
article five were set forth in extenso in this section.
The court shall have the power to affirm, modify or reverse
the decision of the department and either the applicant or
licensee or the department may appeal from the court's decision
to the supreme court of appeals. Pending the final disposition
of the matter the status quo of the applicant or licensee shall
be preserved.
Any applicant or licensee who is dissatisfied with the
decision of the state department of health as a result of the
hearing provided in this section may, within thirty days after
receiving notice of the decision, appeal to the circuit court, in
term or in vacation, of the county in which the applicant or
licensee is located for judicial review of the decision.
ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.
§16-5B-4. License fees.
The application of any person, partnership, association,
corporation, or local government unit for a license to operate a
hospital or extended care facility operated in connection with a
hospital, shall be accompanied by a fee to be determined by the
number of beds available for patients, according to the following
schedule of fees: Those with five beds but less than fifty beds
shall pay a fee of five hundred dollars; those with fifty beds or
more and less than one hundred beds shall pay a fee of seven
hundred fifty dollars; those with one hundred beds or more and
less than two hundred beds shall pay a fee of one thousand
dollars; and those with two hundred beds or more shall pay a feeof one thousand two hundred fifty dollars. The director may
annually adjust the by rule, proposed for promulgation pursuant
to article three, chapter twenty-nine-a of this code, increase
such licensure fees:
Provided,
That during the first year of
implementation of the increase in fees by legislative rule, the
director may promulgate emergency rules. for inflation based upon
the consumer price index. The application of any person,
partnership, association, corporation, or local governmental unit
for a license to operate an ambulatory health care facility or
ambulatory surgical facility shall be accompanied by a reasonable
fee to be determined by the director, based on the number of
patients served by the facility. No such fee shall be refunded.
All licenses issued under this article shall expire on the
thirtieth day of June following their issuance, shall be on a
form prescribed by the state department of health, shall not be
described in the application, shall be posted in a conspicuous
place on the licensed premises, and may be renewed from year to
year upon application, investigation and payment of the license
fee, as in the case of the procurement of an original license:
Provided,
That any such license in effect on the thirtieth day of
June of any year, for which timely application for renewal,
together with payment of the proper fee, has been made to the
state department of health in conformance with the provisions of
this article and the rules and regulations issued thereunder, and
prior to the expiration date of such license, shall continue in
effect until (a) the thirtieth day of June next following the
expiration date of such license, or (b) the date of the
revocation or suspension of such license pursuant to theprovisions of this article, or (c) the date of issuance of a new
license, whichever date first occurs:
Provided, however,
That in
the case of the transfer of ownership of a facility with an
unexpired license, the application of the new owner for a license
shall have the effect of a license for a period of three months
when filed with the director. All fees received by the state
department of health under the provisions of this article shall
be deposited in accordance with section thirteen, article one of
this chapter.
ARTICLE 5C. NURSING AND PERSONAL CARE HOMES AND RESIDENTIAL
BOARD AND CARE HOMES.
§16-5C-6. License required; application; fees; duration;
renewal.
Subject to the provisions of section seventeen of this
article, no person may establish, operate, maintain, offer or
advertise a nursing home, personal care home, or residential
board and care home within this state unless and until he obtains
a valid license therefor as hereinafter provided, which license
remains unsuspended, unrevoked and unexpired. No public official
or employee may place any person in, or recommend that any person
be placed in, or directly or indirectly cause any person to be
placed in, any facility, as defined in section two of this
article, which is being operated without a valid license from the
director. The procedure for obtaining a license shall be as
follows:
(a) The applicant shall submit an application to the
director on a form to be prescribed by the director, containing
such information as may be necessary to show that the applicantis in compliance with the standards for nursing homes, personal
care homes, or residential board and care homes as established by
this article and the rules and regulations lawfully promulgated
by the board of health hereunder. The application and any
exhibits thereto shall provide the following information:
(1) The name and address of the applicant;
(2) The name, address and principal occupation (i) of each
person who, as a stockholder or otherwise, has a proprietary
interest of ten percent or more in the applicant, (ii) of each
officer and director of a corporate applicant, (iii) of each
trustee and beneficiary of an applicant which is a trust, and
(iv) where a corporation has a proprietary interest of fifty
percent or more in an applicant, the name, address and principal
occupation of each officer and director of such corporation;
(3) The name and address of the owner of the premises of the
facility or proposed facility, if he is a different person from
the applicant, and in such case, the name and address (i) of each
person who, as a stockholder or otherwise, has a proprietary
interest of ten percent or more in such owner, (ii) of each
officer and director of a corporate applicant, (iii) of each
trustee and beneficiary of such owner if he is a trust, and (iv)
where a corporation has a proprietary interest of fifty percent
or more in such owner, the name and address of each officer and
director of such corporation;
(4) Where the applicant is the lessee or the assignee of the
facility or the premises of the proposed facility, a signed copy
of the lease and any assignment thereof;
(5) The name and address of the facility or the premises ofthe proposed facility;
(6) The type of institution to be operated;
(7) The proposed bed quota of the facility and the proposed
bed quota of each unit thereof;
(8) (i) An organizational plan for the facility indicating
the number of persons employed or to be employed, the positions
and duties of all employees, (ii) the name and address of the
individual who is to serve as administrator, and (iii) such
evidence of compliance with applicable laws and regulations
governing zoning, buildings, safety, fire prevention and
sanitation as the director may require;
(9) Such additional information as the director may require;
and
(10) Assurances that the nursing home was reviewed and found
to be needed under the provisions of article two-d of this
chapter.
(b) Upon receipt and review of an application for license
made pursuant to subdivision (a) of this section, and inspection
of the applicant facility pursuant to section ten of this
article, the director shall issue a license if he finds:
(1) That an individual applicant, and every partner,
trustee, officer, director and controlling person of an applicant
which is not an individual, be a person responsible and suitable
to operate or to direct or participate in the operation of a
facility by virtue of financial capacity, appropriate business or
professional experience, a record of compliance with lawful
orders of the department (if any) and lack of revocation of a
license during the previous five years;
(2) That the facility be under the supervision of an
administrator who is qualified by training and experience:
Provided,
That every facility classified as a nursing home shall
have an administrator licensed pursuant to the provisions of
article twenty-five, chapter thirty of this code; and
(3) That the facility is in substantial compliance with
standards established pursuant to section five of this article,
and such other requirements for a license as the board of health
may establish by regulation under this article.
Any license granted by the director shall state the maximum
bed capacity for which it is granted, the date the license was
issued, the expiration date, and the rating assigned to the
facility pursuant to section five of this article. Such licenses
shall be issued for a period not to exceed fifteen months for
nursing homes and for a period of not to exceed one year for
personal care homes and residential board and care homes:
Provided,
That any such license in effect for which timely
application for renewal, together with payment of the proper fee
has been made to the state department of health in conformance
with the provisions of this article and the rules and regulations
issued thereunder, and prior to the expiration date of such
license, shall continue in effect until (a) one year following
the expiration date of such license, or (b) the date of the
revocation or suspension of such license pursuant to the
provisions of this article, or (c) the date of issuance of a new
license, whichever date first occurs. Each license shall be
issued only for the premises and persons named in the application
and shall not be transferable or assignable:
Provided, however,
That in the case of the transfer of ownership of a facility with
an unexpired license, the application of the new owner for a
license shall have the effect of a license for a period of three
months when filed with the director. Every license shall be
posted in a conspicuous place in the facility for which it is
issued so as to be accessible to and in plain view of all
patients and visitors of the facility.
(c) An original license shall be renewable, conditioned upon
the licensee filing timely application for the extension of the
term of the license accompanied by the fee, and contingent upon
evidence of compliance with the provisions of this article and
regulations promulgated by the board of health hereunder:
Provided,
That notwithstanding the requirements of other sections
of this article, the director may deem as evidence of compliance
with such provisions and regulations the certification of nursing
home beds under the medicare or medicaid requirements of titles
eighteen or nineteen of the Social Security Act, Title 42, United
States Code, sections 1395 and 1396, et seq. Any such
application for renewal of a license shall include a report by
the licensee in such form and containing such information as
shall be prescribed by the director, including the following:
(1) A balance sheet of the facility as of the end of its
fiscal year, setting forth assets and liabilities at such date,
including all capital, surplus, reserve, depreciation and similar
accounts;
(2) A statement of operations of the facility as of the end
of its fiscal year, setting forth all revenues, expenses, taxes,
extraordinary items and other credits or charges; and
(3) A statement of any changes in the name, address,
management or ownership information on file with the director.
All holders of facility licenses as of the effective date of this
article shall include, in the first application for renewal filed
thereafter, such information as is required for initial
applicants under the provisions of subsection (a) of this
section.
(d) In the case of an application for a renewal license, if
all requirements of section five of this article are not met, the
director may in his discretion issue a provisional license,
provided that care given in the facility is adequate for patient
needs and the facility has demonstrated improvement and evidences
potential for substantial compliance within the term of said
license:
Provided,
That a provisional renewal may not be issued
for a period greater than one year, shall not be renewed, and
that no such license shall be issued to any facility with
uncorrected violations of any Class I standard, as defined in
subsection (c), section five of this article.
(e) A nonrefundable application fee in the amount of one
hundred dollars for an original nursing home license or fifty
dollars for an original personal care facility or residential
board and care home license shall be paid at the time application
is made for such license. The director may by rule, proposed for
promulgation pursuant to article three, chapter twenty-nine-a of
this code, increase such application fee:
Provided,
That during
the first year of implementation of the increase in fees by
legislative rule, the director may promulgate emergency rules.
Direct costs of initial licensure inspections or inspections forchanges in licensed bed capacity shall be borne by the applicant
and shall be received by the director prior to the issuance of an
initial or amended license. The license fee for renewal of a
license shall be at the rate of eight dollars per bed per year
for nursing homes, and four dollars per bed per year for personal
care homes, and two dollars per bed per year for residential
board and care homes, except the annual rate per bed may be
assessed for licenses issued for less than one year. The
director may annually adjust the by rule, proposed for
promulgation pursuant to article three, chapter twenty-nine-a of
this code, increase such licensure fees:
Provided,
That during
the first year of implementation of the increase in fees by
legislative rule, the director may promulgate emergency rules.
for inflation based upon the consumer price index. The bed
capacity for the holder of each license shall be determined by
the director. All such license fees shall be due and payable to
the director, annually, and in such manner set forth in the rules
and regulations promulgated by the board of health. Such fee and
application shall be submitted to the director who shall retain
both the application and fee pending final action on the
application. All fees received by the director under the
provisions of this article shall be deposited in accordance with
section thirteen, article one of this chapter.
CHAPTER 27. MENTALLY ILL PERSONS.
§27-9-1. License from director of health; regulations.
No hospital, center or institution, or part thereof, to
provide inpatient, outpatient or other service designed to
contribute to the care and treatment of the mentally ill ormentally retarded, or prevention of such disorders, shall be
established, maintained or operated by any political subdivision
or by any person, persons, association or corporation unless a
license therefor shall be first obtained from the director of
health. The application for such license shall be accompanied by
a plan of the premises to be occupied, a license fee to be
established by the director by rule, proposed for promulgation
pursuant to article three, chapter twenty-nine-a of this code,
and such other data and facts as the director may require:
Provided,
That during the first year of implementation of the
increase in fees by legislative rule, the director may promulgate
emergency rules. He may make such terms and regulations in
regard to the conduct of such hospital, center or institution, or
part thereof, as he may think proper and necessary. He, or any
person authorized by him, shall have authority to investigate and
inspect such hospital, center or institution, or part thereof;
and the director of health may revoke the license of any such
hospital, center or institution, or part thereof, for good cause
after reasonable notice to the superintendent or other person in
charge thereof. All fees collected under this article shall be
deposited in accordance with section thirteen, article one,
chapter sixteen of this code.
ARTICLE 17. GROUP RESIDENTIAL FACILITIES.
§27-17-3. License from director of health; application;
regulations; revocation.
No group residential facility shall be established,
maintained or operated unless a license therefor shall be first
obtained from the director of health, except that a groupresidential facility for behaviorally disabled juveniles shall be
deemed to satisfy all requirements of this section by obtaining
a license from the commissioner of human services. The
application for such license shall contain such data and facts as
the director may require and be accompanied by a license fee to
be established by the director by rule, proposed for promulgation
pursuant to article three, chapter twenty-nine-a of this code:
Provided,
That during the first year of implementation of the
increase in fees by legislative rule, the director may promulgate
emergency rules. The director may promulgate reasonable
regulations for the conduct of such facilities, including, but
not limited to, a statement of the rights of patients in group
residential facilities for the mentally and physically impaired
to ensure the adequate care and supervision of such patients, and
shall have the authority to investigate and inspect any such
facility, and may revoke the license of any such facility for
good cause after notice and hearing. All fees collected under
this article shall be deposited in accordance with section
thirteen, article one, chapter sixteen of this code.
NOTE: The purpose of this bill is to allow the director of
health to adopt rules to increase licensure fees of health care
facilities.