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.