H. B. 2776
(By Delegates Douglas and Compton)
[Introduced March 27, 1997; referred to the
Committee on Government Organization.]
A BILL to amend and reenact sections one, two, three, four, five,
six, seven, eight, nine, ten, eleven, twelve, fourteen,
fifteen, sixteen, seventeen and eighteen, article five-c,
chapter sixteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to further amend said
article by adding thereto a new section, designated section
nine-a; to amend said chapter by adding thereto a new
article, designated article five-d; to amend and reenact
sections one, two, three, five and six, article five-e of
said chapter; to further amend said article by adding
thereto a new section, designated section one-a; and to
amend and reenact article five-h of said chapter, all
relating to the licensure of nursing homes, personal care
homes and residential board and care homes; requiring the
registration of and authorizing the inspection of legally
unlicensed health care homes; stating the purposes; defining
terms; specifying the powers and duties of the director of
the division of health; authorizing administrative and inspection staff; authorizing the proposal of legislative
rules and requiring rules establishing minimum standards of
operation; requiring licenses; establishing fees; requiring
cost disclosure and surety for residents' funds;
investigating complaints; inspecting and reporting of
inspections; requiring plans of correction; assessing
penalties and attorneys' costs and using funds derived
therefrom; providing the opportunity for hearings; limiting
suspending and revoking licenses; banning admissions;
continuing disciplinary proceedings; closing homes and
transferring residents; appointing temporary management;
assessing interest; collecting assessments; allowing
administrative appeals and judicial review; providing legal
counsel; specifying unlawful acts; providing for civil and
criminal penalties, injunctions and private rights of
action; making available inspection reports and records;
making a registry of service providers available to the
public; continuing licenses and rules; and establishing
requirements for accounting for residents' personal funds.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four, five, six, seven,
eight, nine, ten, eleven, twelve, fourteen, fifteen, sixteen,
seventeen and eighteen, article five-c, chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section nine- a; that said chapter be further amended by adding thereto a new article, designated article five-d; that sections one, two,
three, five and six, article five-e of said chapter be amended
and reenacted; that said article be further amended by adding
thereto a new section, designated section one-a; and that article
five-h of said chapter be amended and reenacted, all to read as
follows:
ARTICLE 5C. NURSING HOMES.
§16-5C-1. Purpose.
It is the policy of this state to encourage and promote the
development and utilization of adequate public and private
resources to ensure the effective and financially efficient care
and treatment of persons who are convalescing or whose physical
or mental condition requires them to receive a degree of nursing
or related health care greater than that necessary for well
individuals. but not so acute 51 as to require hospitalization
Such care and treatment require a living environment for such
persons which, to the extent practicable, will approximate a
normal home environment. To this end, the guiding principle for
administration of the laws of the state is that such persons
shall be encouraged and assisted in securing necessary care and
treatment in noninstitutional surroundings. In recognition that
for many such persons effective care and treatment can only be
secured from proprietary, voluntary and governmental nursing
homes or personal care homes it is the policy of this state to
encourage, promote and require the maintenance of institutions
other than hospitals offering nursing homes or related health
care or personal care so as to ensure protection of the rights and dignity of those using the services of such facilities.
The provisions of this article are hereby declared to be
remedial and shall be liberally construed to effectuate its
purposes and intents.
§16-5C-2. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) "Deficiency" means a nursing home's failure to meet the
requirements specified in article five-c, chapter sixteen of this
code and rules promulgated thereunder.
(a) The term (b) "Director" means the secretary of the
department of health and human resources or his or her designee.
(b) The term "facility" means any nursing home, personal
care home or residential board and care home as defined in
subdivisions (e), (e) and (f) of this section: Provided, That
the care or treatment in a household, whether for compensation or
not, of any person related by blood or marriage, within the
degree of consanguinity of second cousin to the head of the
household, or his or her spouse, may not be deemed to constitute
a nursing home, personal care home or residential board and care
home within the meaning of this article. Nothing contained in
this article applies to hospitals, as defined under section one,
article five-b of this chapter; or state institutions, as defined
under section three, article one, chapter twenty-five of this
code or section six, article one, chapter twenty-seven of this
code; or nursing homes operated by the federal government or the
state government; or institutions operated for the treatment and care of alcoholic patients; or offices of physicians; or hotels,
boarding homes or other similar places that furnish to their
guests only room and board; or extended care facilities operated
in conjunction with a hospital; or to homes or asylums operated
by fraternal orders pursuant to article three, chapter thirty- five of this code;
(c) The term "limited and intermittent nursing care" means
care which may only be provided when the need for such care meets
these factors: (1) The resident requests to remain in the
facility; (2) the resident is advised of the availability of
other specialized health care facilities to treat his or her
condition; and (3) the need for such care is the result of a
medical pathology or a result of the normal aging process.
Limited and intermittent nursing care shall only be provided by
or under the direct supervision of a registered professional
nurse and in accordance with rules promulgated by the board of
health; "Household" means a private home or residence which is
separate from or unattached to a nursing home.
(d) "Immediate jeopardy" means a situation in which the
nursing home's noncompliance with one or more of the provisions
of this article or rules promulgated thereunder has caused or is
likely to cause serious harm, impairment or death to a resident.
(d) The term (e) "Nursing home" or "facility" means any
institution, residence or place, or any part or unit thereof,
however named, in this state which is advertised, offered,
maintained or operated by the ownership or management, whether
for a consideration or not, for the express or implied purpose of providing accommodations and care, for a period of more than
twenty-four hours, for four or more persons who are ill or
otherwise incapacitated and in need of extensive, ongoing nursing
care due to physical or mental impairment or which provides
services for the rehabilitation of persons who are convalescing
from illness or incapacitation.
The care or treatment in a household, whether for
compensation or not, of any person related by blood or marriage,
within the degree of consanguinity of second cousin to the head
of the household, or his or her spouse, may not be deemed to
constitute a nursing home within the meaning of this article.
Nothing contained in this article applies to nursing homes
operated by the federal government; or extended care facilities
operated in conjunction with a hospital; or institutions operated
for the treatment and care of alcoholic patients; or offices of
physicians; or hotels, boarding homes or other similar places
that furnish to their guests only room and board; or to homes or
asylums operated by fraternal orders pursuant to article three,
chapter thirty-five of this code.
(e) The term "personal care home" means any institution,
residence or place, or any part or unit thereof, however named,
in this state which is advertised, offered, maintained or
operated by the ownership or management, whether for a
consideration or not, for the express or implied purpose of
providing accommodations and personal assistance and supervision,
for a period of more than twenty-four hours, to four or more
persons who are dependent upon the services of others by reason of physical or mental impairment who may require limited and
intermittent nursing care, including those individuals who
qualify for and are receiving services coordinated by a licensed
hospice: Provided, That services utilizing equipment which
requires auxiliary electrical power in the event of a power
failure may not be used unless the personal care home has a
backup power generator;
(f) The term "residential board and care home" means any
residence or place, or any part or unit thereof, however named,
in this state which is advertised, offered, maintained or
operated by the ownership or management, whether for
consideration or not, for the express or implied purpose of
providing accommodations and personal assistance and supervision,
for a period of more than twenty-four hours, to four to ten
persons who are not related to the owner or manager by blood or
marriage within the degree of consanguinity of second cousin and
are dependent upon the services of others by reason of physical
or mental impairment or who may require limited and intermittent
nursing care but are capable of self-preservation and are not
bedfast, including those individuals who qualify for and are
receiving services coordinated by a licensed hospice: Provided,
That services utilizing equipment which requires auxiliary
electrical power in the event of a power failure may not be used
unless the residential board and care home has a backup power
generator;
(g) The term (f) "Nursing care" means those procedures
commonly employed in providing for the physical, emotional and rehabilitational needs of the ill or otherwise incapacitated
which require technical skills and knowledge beyond that which
the untrained person possesses, including, but not limited to,
such procedures as: Irrigations, catheterization, special
procedure contributing to rehabilitation, and administration of
medication by any method which involves a level of complexity and
skill in administration not possessed by the untrained person.
(h) The term "personal assistance" means personal services,
including, but not limited to, the following: Help in walking,
bathing, dressing, feeding or getting in or out of bed, or
supervision required because of the age or mental impairment of
the resident;
(i) The term "patient" means an individual under care in a
nursing home;
(j) The term (g) "Resident" means an individual living in a
personal care home or a residential board and care nursing home.
(h) "Review organization" means any committee or
organization engaging in peer review or quality assurance,
including, but not limited to, a medical audit committee, a
health insurance review committee, a professional health service
plan review committee or organization, a dental review committee,
a physician's advisory committee, a podiatry advisory committee,
a nursing advisory committee, any committee or organization
established pursuant to a medical assistance program, any
committee or organization established or required under state or
federal statutes, rules or regulations, and any committee
established by one or more state or local professional societies or institutes, to gather and review information relating to the
care and treatment of residents for the purposes of: (1)
Evaluating and improving the quality of health care rendered; (2)
reducing morbidity or mortality; or (3) establishing and
enforcing guidelines designed to keep within reasonable bounds
the cost of health care.
(k) The term (i) "Sponsor" means the person or agency
legally responsible for the welfare and support of a patient or
resident.
(l) The term (j) "Person" means an individual and every form
of organization, whether incorporated or unincorporated,
including any partnership, corporation, trust, association or
political subdivision of the state.
(k) "Substantial compliance" means a level of compliance
with the rules such that no deficiencies exist or such that
identified deficiencies pose no greater risk to resident health
or safety than the potential for causing minimal harm.
The director may define in the regulations rules any term
used herein which is not expressly defined.
§16-5C-3. Powers, duties and rights of director.
In the administration of this article, the director shall
have the following powers, duties and rights:
(a) To enforce rules regulations and standards promulgated
hereunder for nursing homes; personal care homes, and residential
board and care homes which are adopted, promulgated, amended or
modified by the board of health;
(b) To exercise as sole authority all powers relating to the issuance, suspension and revocation of licenses of nursing homes;
personal care homes and residential board and care homes;
(c) To enforce rules adopted, promulgated amended or
modified by the board of health hereunder governing the
qualification of applicants for nursing home personal care home,
or residential board and care home licenses, including, but not
limited to, educational requirements, financial requirements,
personal and ethical requirements;
(d) To receive and disburse federal funds and to take
whatever action not contrary to law as may be proper and
necessary to comply with the requirements and conditions for the
receipt of such federal funds;
(e) To receive and disburse for authorized purposes any
moneys appropriated to the division of health by the Legislature;
(f) To receive and disburse for purposes authorized by this
article, any funds that may come to the division of health by
gift, grant, donation, bequest or devise, according to the terms
thereof, as well as funds derived from the division of health's
operation, or otherwise;
(g) To make contracts, and to execute all instruments
necessary or convenient in carrying out the director's functions
and duties; and all such contracts, agreements and instruments
shall be executed by the director;
(h) To appoint officers, agents, employees and other
personnel and fix their compensation;
(i) To offer and sponsor educational and training programs
for nursing home, personal care homes and residential board and care home homes for clinical, administrative, management and
operational personnel;
(j) To undertake survey, research and planning projects and
programs relating to administration and operation of nursing
homes, personal care homes, and residential board and care homes,
and to the health, care, treatment and service in general of
patients and residents of such homes;
(k) To assess civil penalties for violations of facility
standards, in accordance with section ten of this article;
(l) To classify nursing homes into care categories such as
skilled nursing facilities, intermediate care facilities, and
other comparable categories under the terms of this article if,
in the opinion of the director, the best interest of the public
is served by doing so;
(m) (l) To inspect any facility nursing home and any records
maintained therein that are necessary to determine compliance
with licensure laws or medicare or medicaid certification,
subject to the provisions of section ten of this article;
(n) (m) To establish and implement procedures, including
informal conferences, investigations and hearings, subject to
applicable provisions of article three, chapter twenty-nine-a of
this code, and to enforce compliance with the provisions of this
article and with regulations rules issued hereunder; by the board
of health
(o) (n) To subpoena witnesses and documents, administer
oaths and affirmations, and to examine witnesses under oath for
the conduct of any investigation or hearing. Upon failure of a person without lawful excuse to obey a subpoena to give testimony
and upon reasonable notice to all persons affected thereby, the
director may apply to the circuit court of the county in which
the hearing is to be held or to the circuit court of Kanawha
County for an order compelling compliance;
(p) (o) To make complaint or cause proceedings to be
instituted against any person or persons for the violation of the
provisions of this article or of regulations rules issued
hereunder. by the board of health Such action may be taken by
the director without the sanction of the prosecuting attorney of
the county in which proceedings are instituted, if said the
officer fails or refuses to discharge his or her duty. The
circuit court of Kanawha County or the circuit court of the
county in which the conduct has occurred or, if emergency
circumstances require, the circuit court of Kanawha County shall
have jurisdiction in all civil enforcement actions brought under
this article and may order equitable relief without bond. In no
such case shall may the director or any person acting under the
director's direction be required to give security for costs;
(q) (p) To delegate authority to the director's employees
and agents to perform all functions of the director except the
making of final decisions in adjudications;
(r) (q) To submit a an annual report to the governor, the
Legislature and the public sixty days before the governor is
required to submit an annual budget report to the Legislature.
on or before the first day of December, one thousand nine hundred
seventy-eight, and annually thereafter The report shall describe the licensing and investigatory activities of the department
during the year, and the nature and status of other activities of
the department, and may include comment on the acts, policies,
practices or procedures of any public or private agency that
effect the rights, health or welfare of patients or residents of
nursing homes. and personal care homes The annual report shall
include a list of all nursing homes personal care homes, and
residential board and care homes, in the state, whether such
homes are proprietary or nonproprietary; the classification of
each such home the name of the owner or owners; the total number
of beds; the number of private and semiprivate rooms; the costs
per diem for private patients residents; the number of full-time
employees and their professions; recreational programs; services
and programs available as well as the costs thereof; the rating
assigned to the home by the department pursuant to section five
of this article, and whether or not those nursing homes listed
accept medicare and medicaid patient's residents. The report
shall also contain the department's recommendations as to changes
in law or policy which it deems necessary or appropriate for the
protection of the rights, health or welfare of patients residents
of nursing homes and personal care homes in the state; and
(s) The director shall determine which of those requirements
listed in subsection (r) will apply to personal care homes and
residential board and care homes.
(r) To establish a formal process for licensed facilities to
file complaints about the survey process or surveyors; and
(s) To establish a committee to study and make a recommendation to the Legislature on a central reporting system
for allegations of abuse.
§16-5C-4. Administrative and inspection staff.
The director may, at such time or times as he or she may
deem necessary, employ such administrative employees, inspectors,
or other persons as may be necessary to properly carry out the
provisions of this article. All employees of the department
shall be members of the state civil service system and surveyors
shall be trained to perform their assigned duties. Such
inspectors and other employees as may be duly designated by the
director shall act as the director's representatives and, under
the direction of the director, shall enforce the provisions of
this article and all duly promulgated regulations of the board of
health and, in the discharge of official duties, shall have the
right of entry into any place maintained as a nursing home. or
personal care home
§16-5C-5. Rules; minimum standards for nursing homes.
(a) All rules and regulations shall be approved by the board
of health and promulgated in the manner provided by the proposed
for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code. The board of
health shall adopt, amend or repeal director shall recommend the
adoption, amendment or repeal of such rules and regulations as
may be necessary or proper to carry out the purposes and intent
of this article. and to enable the director to exercise the
powers and perform the duties conferred upon the director by this
article
(b) The board of health shall promulgate director shall
recommend regulations rules establishing minimum standards of
operation of facilities nursing homes including, but not limited
to, the following:
(1) Administrative policies, including: (i) (A) An
affirmative statement of the right of access to facilities
nursing homes by members of recognized community organizations
and community legal services programs whose purposes include
rendering assistance without charge to patients residents,
consistent with the right of patients residents to privacy; and
(ii) (B) a statement of the rights and responsibilities of
patients in facilities residents in nursing homes which
prescribe, as a minimum, such a statement of patients' residents'
rights as included in the United States department of health
education and welfare and human services regulations, in force on
the effective date of this article, governing participation of
intermediate care facilities nursing homes in the medicare and
medicaid programs pursuant to titles eighteen and nineteen of the
Social Security Act;
(2) Minimum numbers and qualifications of personnel,
including management, medical and nursing, aides, orderlies and
support personnel, according to the size and classification of
the facility of administrators, medical directors, nurses, aides
and other personnel according to the occupancy of the facility;
(3) Qualifications of facility's administrators, medical
directors, nurses, aides, and other personnel;
(3) (4) Safety requirements;
(4) (5) Sanitation requirements;
(5) (6) Protective and Personal services to be provided;
(6) (7) Dietary services to be provided;
(7) (8) Maintenance of health Medical records;
(8) (9) Social and recreational activities to be made
available; and
(9) Such other categories as the board of health determines
to be appropriate to ensure patient's health, safety and welfare.
(10) Pharmacy services;
(11) Nursing services;
(12) Medical services;
(13) Physical facility;
(14) Resident rights; and
(15) Admission, transfer and discharge rights.
(c) The board of health shall include in its regulations
detailed standards for each of the categories of standards
established pursuant to subsections (b) and (d) of this section,
and shall classify such standards as follows: Class I standards
are standards the violation of which, the board of health
determines, would present either an imminent danger to the
health, safety or welfare of any patient or a substantial
probability that death or serious physical harm would result;
Class II standards are standards which the board of health
determines have a direct or immediate relationship to the health,
safety or welfare of any patient, but which do not create
imminent danger; Class III standards are standards which the
board of health determines have an indirect or a potential impact on the health, safety or welfare of any patient.
(d) The board of health shall establish:
(1) Standards grouped into broad general categories
including, but not limited to, nursing services, dietetic
services, medical services, the physical facility and patient
rights. Standards within each category shall be assigned a
numerical value based on its classification according to
subsection (c) of this section to represent full compliance with
the standard. The board of health shall also determine numerical
values for a standard to represent an acceptable level or levels
of partial but substantial compliance with the standard, if
applicable.
(2) A range of values for each category based on the values
for individual standards to represent full compliance and various
levels of acceptable partial but substantial compliance with the
category. A facility must attain an acceptable substantial level
of compliance for each and every individual category to be deemed
in substantial compliance with this article and the regulations
promulgated hereunder.
(3) Standards for which extra numerical credit may be
earned. Such extra credit shall not be used to counterbalance
unacceptable levels of compliance with other standards, but may
be used to raise a score where the facility is already in partial
compliance.
(e) Not later than the first day of March, one thousand nine
hundred eighty-nine, the board of health shall establish a system
of rating facilities, as part of the licensing procedure, in accordance with the criteria established pursuant to this
section. Such system shall include four rating categories
entitled, from the highest to lowest, "A," "B," "C" and "F." A
rating of "F" shall be assigned to those facilities whose
performance is not in substantial compliance with this article
and regulations promulgated hereunder, and shall be the basis for
issuance of a provisional license pursuant to subsection (d),
section six of this article, or the limitation, suspension,
revocation or denial of a license. The rating assigned to each
facility shall be on the basis of its immediately prior
inspection, and shall be deemed a part of the results and
findings of that inspection, and shall be included on the license
issued to the facility pursuant to section six of this article.
§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 or she
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 nursing home, 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 is 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 applicant
is 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) (A) Of
each person who, as a stockholder or otherwise, has a proprietary
interest of ten percent or more in the applicant; (ii) (B) of
each officer and director of a corporate applicant; (iii) (C) of
each trustee and beneficiary of an applicant which is a trust;
and (iv) (D) where a corporation has a proprietary interest of
fifty twenty-five percent or more in an applicant, the name,
address and principal occupation of each officer and director of
such the corporation;
(3) The name and address of the owner of the premises of the
facility nursing home or proposed facility nursing home, if he or
she is a different person from the applicant, and in such case,
the name and address: (i) (A) Of each person who, as a
stockholder or otherwise, has a proprietary interest of ten
percent or more in such the owner; (ii) (B) of each officer and
director of a corporate applicant; (iii) (C) of each trustee and
beneficiary of such the owner if he it is a trust; and (iv) (D)
where a corporation has a proprietary interest of fifty twenty-
five percent or more in such the owner, the name and address of each officer and director of such the corporation;
(4) Where the applicant is the lessee or the assignee of the
facility nursing home or the premises of the proposed facility
nursing home, a signed copy of the lease and any assignment
thereof;
(5) The name and address of the facility nursing home or the
premises of the proposed facility nursing home;
(6) The type A description of institution the nursing home
to be operated;
(7) The proposed bed quota of the facility nursing home as
determined by the health care cost review authority; and the
proposed bed quota of each unit thereof
(8) (i) (A) An organizational plan for the facility nursing
home indicating the number of persons employed or to be employed
and the positions and duties of all employees; (ii) (B) the name
and address of the individual who is to serve as administrator;
and (iii) (C) such evidence of compliance with applicable laws,
and rules and regulations governing zoning, buildings, safety,
fire prevention and sanitation as the director may require;
(9) A listing of other states in which the applicant owns,
operates or manages a nursing home or long term care facility;
(9) (10) Such additional information as the director may
require; and
(10) (11) Assurances that the nursing home is in compliance
with 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 nursing home pursuant to section ten of
this article, the director shall issue a license if he or she
finds:
(1) That an individual applicant, and every partner,
trustee, officer, director and controlling person of an applicant
which is not an individual, be is a person responsible and
suitable to operate or to direct or participate in the operation
of a facility nursing home 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 or
consistent poor performance in other states;
(2) That the facility be is 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 may be established by regulation rule 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 and 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 director in
conformance with the provisions of this article and the rules and
regulations issued thereunder, and prior to the expiration date
of such the license, shall continue in effect until: (A) one
year Six months following the expiration date of such the
license; or (b) (B) the date of the revocation or suspension of
such the license pursuant to the provisions of this article; or
(c) (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 is not
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 which is
filed thirty days before the date of transfer, shall have the
effect of a license for a period of three months when filed with
the director. The director shall issue or deny a license to the
new owner within three months of receipt of the application. If
the transfer does not occur within thirty days, the effect of a
license for a three-month period ceases. Every license shall be
posted in a conspicuous place in the facility nursing home for
which it is issued so as to be accessible to and in plain view of
all patients residents of and visitors of the facility to the nursing home.
(c) An original A license shall be is 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 rules 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 rules 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 nursing home 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 nursing home
as of the end of its fiscal year, setting forth all revenues,
expenses, taxes, extraordinary items and other credits or
charges; and
(3) If a nursing home is in compliance with the requirements
of the health care facility financial disclosure act, as provided
in article five-f, chapter sixteen of this code, it will be considered to have met the requirements established in
subdivisions (1) and (2) of this subsection.
(3) (4) 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 at his or her discretion issue a provisional
license, provided that care given in the facility nursing home
is adequate for patient resident needs and the facility nursing
home has demonstrated improvement and evidences potential for
substantial compliance within the term of said the license:
Provided, That a provisional renewal license may not be issued
for a period greater than one year six months, shall may not be
renewed, and that no such license shall may not be issued to any
facility nursing home that is a poor performer. 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 two
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 the license. Direct costs of initial licensure inspections or inspections for changes 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 fifteen 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 fifteen months. Annually, the
director may annually adjust the licensure fees for inflation
based upon the increase in the consumer price index during the
last twelve months. 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 the manner set forth in the rules and regulations
promulgated by the board of health hereunder. Such The 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.
§16-5C-7. Cost disclosure; surety for resident funds.
(a) Each nursing home and personal care home shall disclose
in writing to all prospective patients residents at the time of
admission a complete and accurate list of all costs which may be
incurred by them; and such facility shall display or cause to be
displayed copies of such list in conspicuous places therein shall notify the residents thirty days in advance of changes in costs.
and such The nursing home shall make available copies of the
list in the nursing home's business office for inspection.
Patients Residents may not be liable for any cost not so
disclosed.
(b) If the facility nursing home handles any money for
patients residents within the facility, the licensee or his or
her authorized representative shall either: (1) Give a bond; or
(2) obtain and maintain commercial insurance with a company
licensed in this state in an amount consistent with this
subsection and with such the surety as the director shall
approve. Such The bond or insurance shall be upon condition that
the licensee shall hold separately and in trust all patients'
residents' funds deposited with the licensee, shall administer
the funds on behalf of the patient resident in the manner
directed by the depositor, shall render a true and complete
account to the depositor and the director when requested, and at
least quarterly to the patient resident, and upon termination of
the deposit, shall account for all funds received, expended, and
held on hand. The licensee shall file a bond or obtain insurance
in a sum to be fixed by the director based upon the magnitude of
the operations of the applicant, but which sum may not be less
than two thousand five hundred dollars at least one and twenty-
five one-hundredths the average amount of funds deposited with
the nursing home during the nursing home's previous fiscal year.
Every person injured as a result of any improper or unlawful
handling of the money of a patient of a facility may bring an action in a proper court on the bond required to be posted by the
licensee pursuant to this subsection for the amount of damage
suffered as a result thereof to the extent covered by the bond.
This insurance policy shall specifically designate the resident
as the beneficiary or payee reimbursement of lost funds.
Regardless of the type of coverage established by the facility,
the facility shall reimburse, within thirty days, the resident
for any losses directly and seek reimbursement through the bond
or insurance itself. Whenever the director determines that the
amount of any bond which is filed or insurance required pursuant
to this subsection is insufficient to adequately protect the
money of patients residents which is being handled, or whenever
the amount of any such bond or insurance is impaired by any
recovery against the bond or insurance, the director may require
the licensee to file an additional bond or insurance in such
amount as necessary to adequately protect the money of patients
residents being handled.
The provisions of this subsection may do not apply if the
licensee handles less than twenty-five thirty-five dollars per
patient and less than five hundred dollars for all patients in
any month resident per month in the aggregate.
§16-5C-8. Investigation of complaints.
The board of health shall establish by regulation procedures
The director shall establish rules for prompt investigation of
all complaints of alleged violations by nursing homes or personal
care homes of applicable requirements of state law or regulations
rules, except for such complaints that the director determines are willfully intended to harass a licensee or are without any
reasonable basis. Such procedures shall include provisions for
ensuring the confidentiality of the complainant and of any other
person so named in the complaint, and for promptly informing the
complainant and the facility nursing home involved of the results
of the investigation.
If, after its investigation, the director determines that
the complaint has merit, the director shall take appropriate
disciplinary action and shall advise any injured party of the
possibility of a civil remedy. under this article
No facility nursing home may discharge or in any manner
discriminate against any patient resident, legal representative
or employee for the reason that such patient the resident, legal
representative or employee has filed a complaint or participated
in any proceeding specified in this article. Violation of this
prohibition by any facility nursing home constitutes ground for
the suspension or revocation of the license of the facility
nursing home as provided in section eleven of this article. Any
type of discriminatory treatment of a patient resident, legal
representative or employee by whom, or upon whose behalf, a
complaint has been submitted to the director, or any proceeding
instituted under this article, within one hundred twenty days of
the filing of the complaint or the institution of such action,
shall raise a rebuttable presumption that such action was taken
by the facility nursing home in retaliation for such complaint or
action.
§16-5C-9. Inspections.
(a) The director and any duly designated employee or agent
thereof shall have the right to enter upon and into the premises
of any facility nursing home at any time for which a license has
been issued, for which an application for license has been filed
with the director, or which the director has reason to believe is
being operated or maintained as a nursing home personal care home
or residential board and care home without a license. If such
entry is refused by the owner or person in charge of any such
facility the nursing home, the director shall may apply to the
circuit court of the county in which the facility nursing home is
located or the circuit court of Kanawha County for a warrant
authorizing inspection and such court shall issue an appropriate
warrant if it finds good cause for inspection to conduct the
following inspections:
(1) An initial inspection prior to the issuance of a license
pursuant to section six of this article;
(2) A license inspection for a nursing home, which shall be
conducted at least once every fifteen months, if the nursing home
has not applied for and received an exemption from the
requirement as provided for in this section;
(3) The director, by the director's authorized employees or
agents, shall conduct at least one inspection prior to issuance
of a license pursuant to section six of this article, and shall
conduct periodic unannounced inspections thereafter, to determine
compliance by the facility nursing home with applicable rules
statutes and regulations promulgated thereunder. All facilities
shall comply with regulations of the state fire commission. The state fire marshal, by his employees or authorized agents, shall
make all fire, safety and like inspections. The director may
provide for such other inspections as the director may deem
necessary to carry out the intent and purpose of this article.
If after investigating a complaint, the director determines that
the complaint is substantiated and that an immediate and serious
threat to a consumer's health or safety exists, the director may
invoke any remedies available pursuant to section eleven of this
article. Any facility nursing home aggrieved by a determination
or assessment made pursuant to this section, shall have the right
to an administrative appeal as set forth in section twelve of
this section article;
(4) A complaint inspection based on a complaint received by
the director. If, after investigation of a complaint, the
director determines that the complaint is substantiated, the
director may invoke any applicable remedies available pursuant to
section eleven of this article.
§16-5C-9a. Exemptions.
(a) The director may grant an exemption from a license
inspection if a nursing home was found to be in substantial
compliance with the provisions of this chapter at its most recent
inspection and there have been no substantiated complaints
thereafter. The director may not grant more than one exemption
in any two-year period.
(b) The director may grant an exemption to the extent
allowable by federal law from a standard survey, only if the
nursing home was found to be in substantial compliance with certification participation requirements at its previous standard
survey and there have been no substantiated complaints
thereafter.
(c) The director may grant an exemption from periodic
license inspections if a nursing home receives accreditation by
an accrediting body approved by the director and submits a
complete copy of the accreditation report. The accrediting body
shall identify quality of care measures that assure continued
quality care of residents. The director may not grant more than
one exemption in any two-year period.
(d) If a complaint is substantiated, the director has the
authority to immediately remove the exemption.
§16-5C-10. Reports of inspections; plans of correction;
assessment of penalties and use of funds derived
therefrom; hearings.
(a) Reports of all inspections made pursuant to section nine
of this article shall be in writing and filed with the director,
and shall list all deficiencies in the facility's nursing home's
compliance with the provisions of this article and the
regulations rules adopted by the board of health hereunder. The
director shall send a copy of such report to the facility nursing
home and shall specify a time within which the facility nursing
home shall submit a plan for correction of such deficiencies.
which The plan shall be approved, rejected or modified by the
director. The surveyors or the nursing home shall allow audio
taping of the exit conference with the expense to be paid by the
requesting party. The surveyors shall allow audio taping of the exit conference for both licensure and certification inspections
with all costs directly associated with such taping to be paid
the facility.
(b) With regard to a facility nursing home with deficiencies
which is not certified under titles eighteen or nineteen of the
Social Security Act and upon such facility's its failure to
submit a plan of correction which is approved by the director, or
to correct any deficiency within the time specified in an
approved plan of correction, the director may assess civil
penalties as hereinafter provided or may initiate any other legal
or disciplinary action as provided by this article: Provided,
That any action by the director shall be stayed until federal
proceedings arising from the same deficiencies are concluded.
(c) Nothing in this section shall be may be construed to
prohibit the director from enforcing a regulation rule,
administratively or in court, without first affording formal
opportunity to make correction under this section, where, in the
opinion of the director, the violation of such regulation the
rule jeopardizes the health or safety of patients residents, or
where the violation of such regulation the rule is the second or
subsequent such violation occurring during a period of twelve
full months.
(d) Civil penalties assessed against facilities nursing
homes not certified under titles eighteen or nineteen of the
Social Security Act shall be classified according to the nature
of the violation as defined in subsection (c), section five of
this article and regulations promulgated thereunder by the board of health, as follows: For each violation of a Class I standard,
a civil penalty of not less than one hundred nor more than one
thousand dollars shall be imposed; for each violation of a Class
II standard, a civil penalty of not less than fifty nor more than
one hundred dollars shall be imposed; for each violation of a
Class III standard, a civil penalty of not less than twenty-five
nor more than fifty dollars shall be imposed. Each day a
violation continues, after the date by which correction was
required under an approved plan of correction or, if an approved
plan of correction is not submitted, the date on which such plan
was due, shall constitute a separate violation shall not be less
than fifty nor more than eight thousand dollars: Provided, That
the director may not assess a penalty under state licensure for
the same deficiency or violation cited under federal law and may
not assess a penalty against a nursing home if the nursing home
corrects the deficiency within twenty days of receipt of written
notice of the deficiency unless it is a repeat deficiency or the
nursing home is a poor performer.
(e) Within thirty days after the completion of an inspection
for a facility certified under titles eighteen or nineteen of the
Social Security Act, the director may assess civil money
penalties against such facility when the facility is not in
compliance with federal regulatory level A or B certification
requirements as contained in Title 42, Code of Federal
Regulations, part 483. In determining whether to assess a
penalty, and the amount of penalty to be assessed, the director
shall consider how serious the noncompliance with such level A or B requirement is in relation to direct patient care and safety,
the number of patients such a noncompliance is likely to affect,
whether such a noncompliance was a noncompliance during the
previous inspection, the opportunity that the facility has had to
correct the noncompliance, and any additional factors that may be
relevant. For each day in which a facility is, or was, out of
compliance with such level A or B requirements, penalties shall
not exceed one hundred dollars for each such level B requirement
and shall not exceed five hundred dollars for each such level A
requirement. If a facility is out of compliance on two
successive inspections with such a level A or B requirement, the
director may, and in the case of immediate jeopardy to the
health, safety, welfare or rights of patients the director shall,
for each day of noncompliance, assess a civil penalty: Not to
exceed two hundred dollars for each such level B requirement
which is, or was, out of compliance; and, not to exceed one
thousand dollars for each such level A requirement which is, or
was, out of compliance. If a facility is out of compliance on
three or more successive inspections with such a level A or B
requirement, the director shall for each day of noncompliance
assess a civil penalty: Not to exceed six hundred dollars for
each such level B requirement which is, or was, out of
compliance; and, not to exceed three thousand dollars for each
such level A requirement which is, or was, out of compliance.
If the director and the United States secretary of health
and human services determines that a facility's failure to meet
federal Medicaid certification requirements under title nineteen of the Social Security Act does not jeopardize the health or
safety of its patients and if such secretary establishes one or
more remedies which are additional or alternative to the remedy
of terminating the facility's participation under the state
Medicaid plan, any civil money penalty assessed under this
subsection shall be withdrawn.
(e) In determining whether to assess a penalty, and the
amount of penalty to be assessed, the director shall consider:
(1) How serious the noncompliance is in relation to direct
resident care and safety;
(2) The number of residents the noncompliance is likely to
affect;
(3) Whether the noncompliance was noncompliance during a
previous inspection;
(4) The opportunity the nursing home has had to correct the
noncompliance; and
(5) Any additional factors that may be relevant.
(f) The range of civil penalties shall be as follows:
(1) For a deficiency which presents immediate jeopardy to
the health, safety or welfare of one or more residents, the
director may impose a civil penalty of not less than three
thousand nor more than eight thousand dollars;
(2) For a deficiency which actually harms one or more
residents, the director may impose a civil penalty of not less
than one thousand nor more than three thousand dollars;
(3) For a deficiency which has the potential to harm one or
more residents, the director may impose a civil penalty of not less than fifty nor more than one thousand dollars;
(4) For a repeated deficiency, the director may impose a
civil penalty of up to one hundred fifty percent of the penalties
provided in subdivisions (1), (2) and (3) of this subsection; and
(5) If no plan of correction is submitted as established in
this rule, a penalty may be assessed in the amount of one hundred
dollars a day unless a reasonable explanation has been provided
and accepted by the director.
(f) (g) The director shall impose assess a civil penalty of
not more than one thousand dollars against an individual who
willfully and knowingly certifies under section 1919(b)(3)(B)(I)
of title nineteen of the Social Security Act, or under section
1819(b)(3)(B)(I) of title eighteen of such Act, a material and
false statement in a patient resident assessment. Such penalty
shall be imposed with respect to each such patient resident
assessment. The director shall impose a civil penalty of not
more than five thousand dollars against an individual who
willfully and knowingly causes another individual to certify
under either such section of the Social Security Act a material
and false statement in a patient resident assessment. Such
penalty shall be imposed with respect to each such patient
resident assessment.
(g) (h) The director shall assess a civil penalty not to
exceed of not more than two thousand dollars against any
individual who notifies, or causes to be notified, a facility
nursing home of the time or date on which an inspection is
scheduled to be conducted under this article or under titles eighteen or nineteen of the federal Social Security Act.
(h) (i) If the director assesses a penalty under this
section, the director shall cause delivery of notice of such
penalty by personal service or by certified mail. Said notice
shall state the amount of the penalty, the action or circumstance
for which the penalty is assessed, the requirement that the
action or circumstance violates, and the basis upon which the
director assessed the penalty and selected the amount of the
penalty.
(i) (j) The director shall, in a civil judicial proceeding,
recover any unpaid assessment which has not been contested under
section twelve of this article within thirty days of receipt of
notice of such assessment, or which has been affirmed under the
provisions of that section and not appealed within thirty days of
receipt of the director's final order, or which has been affirmed
on judicial review, as provided in section thirteen of this
article. All money collected by assessments of civil penalties
or interest shall be paid into a special patient resident benefit
account and shall be applied by the director only for: (1) The
protection of the health or property of patients of facilities
operated within the state that the director or the United States
secretary of health and human services find to be deficient,
including payment for the costs of relocation of patients to
other facilities, facility residents; (2) long term care
educational activities; (3) the costs arising from the relocation
of residents to other nursing homes when no other funds are
available; and (4) in an emergency situation in which there are no other funds available, the operation of a facility pending
correction of deficiencies or closure. and reimbursement of
patients for personal funds lost
(j) (k) The opportunity for a hearing on an action taken
under this section shall be as provided in section twelve of this
article. In addition to any other rights of appeal conferred
upon a facility pursuant to this section, a facility shall have
the right to request a hearing and seek judicial review pursuant
to sections twelve and thirteen of this article to contest the
citing by the director of a deficiency on an inspection report,
irrespective of whether the deficiency results in the imposition
of a civil penalty.
§16-5C-11. License limitation, suspension, revocation;
continuation of disciplinary proceedings;
closure, transfer of residents, appointment of
temporary management; assessment of interest;
collection of assessments; promulgation of rules
to conform with federal requirements; hearings.
(a) The director shall may by order reclassify a facility,
or reduce the bed quota of the facility nursing home or both, or
impose a ban on new admissions, where he or she finds upon
inspection of the facility nursing home that the licensee is not
providing adequate care under the facility's nursing home's
existing classification or bed quota, and that reclassification
reduction in quota or ban on new admissions, or both, would place
the licensee in a position to render adequate care. Any notice
to a licensee of reclassification, reduction in quota or both shall include the terms of such order, the reasons therefor, and
the date set for compliance. A reduction in bed quota or a ban
on new admissions, or both, may remain in effect until the
nursing home is determined by the director to be in substantial
compliance with the rules. In addition, the director shall
determine that the facility has the management capability to
ensure continued substantial compliance with all applicable
requirements. The director shall evaluate the continuation of
the admissions ban or reduction in bed quota on a continuing
basis, and may make a partial lifting of the admissions ban or
reduction in bed quota consistent with the purposes of this
section. If the residents of the facility are in immediate
jeopardy of their health, safety, welfare or rights, the director
may seek an order to transfer residents out of the nursing home
as provided for in subsection (e) of this section. Any notice to
a licensee of reduction in bed quota or a ban on new admissions
shall include the terms of such order, the reasons therefor, and
a date set for compliance.
(b) The director may suspend or revoke a license issued
under this article or take other action as set forth in this
section, if he or she finds upon inspection that there has been
a substantial failure to comply with the provisions of this
article or the standards or regulations rules promulgated
pursuant hereto.
(c) Whenever a license is limited, suspended or revoked
pursuant to this section or the director imposes other action set
forth in this section, the director shall file a complaint stating facts constituting a ground or grounds for such
limitation, suspension or revocation or other action. Upon the
filing of the complaint, the director shall notify the licensee
in writing of the filing of the complaint within twenty days of
exit conference, enclosing a copy of the complaint, and shall
advise the licensee of the availability of a hearing pursuant to
section twelve of this article. Such notice and copy of the
complaint shall be served on such licensee by certified mail,
return receipt requested.
(d) The suspension, expiration, forfeiture or cancellation
by operation of law or order of the director of a license issued
by the director, or the withdrawal of an application for a
license after it has been filed with the director, may not
deprive the director of the director's authority to institute or
continue a disciplinary proceeding, or a proceeding for the
denial of a license application, against the licensee or
applicant upon any ground provided by law or to enter an order
denying the license application or suspending or revoking the
license or otherwise taking disciplinary action on any such
ground.
(e) In addition to other remedies provided in this article,
upon petition from the director, a circuit court in the county in
which a facility is located, or in Kanawha County if emergency
circumstances occur, may determine that a facility's nursing
home's deficiencies under this article, or under titles eighteen
or nineteen of the federal Social Security Act, if applicable,
constitute an emergency immediately jeopardizing the health, safety, welfare or rights of its patients residents, and issue an
order to:
(1) Close the facility nursing home;
(2) Transfer patients residents in the facility nursing home
to other facilities nursing homes; or
(3) Appoint temporary management to oversee the operation of
the facility and to assure the health, safety, welfare and rights
of the facility's patients residents, where there is a need for
temporary management while:
(A) There is an orderly closure of the facility, or
(B) Improvements are made in order to bring the facility
nursing home into compliance with all the applicable requirements
of this article and, if applicable, titles eighteen and nineteen
of the federal Social Security Act.
If the director petitions a circuit court for the closure of
a facility nursing home, the transfer of patients residents, or
the appointment of a temporary management, the circuit court
shall hold a hearing no later than seven days thereafter, at
which time the director and the licensee or operator of the
facility may participate and present evidence. The burden of
proof is on the director.
A circuit court may divest the licensee or operator of
possession and control of a facility nursing home in favor of a
temporary management. The temporary management shall be
responsible to the court and shall have such powers and duties as
the court may grant to direct all acts necessary or appropriate
to conserve the property and promote the health, safety, welfare and rights of the patients residents of the facility nursing
home, including, but not limited to, the replacement of
management and staff, the hiring of consultants, the making of
any necessary expenditures to close the facility nursing home or
to repair or improve the facility nursing home so as to return it
to compliance with applicable requirements, and the power to
receive, conserve and expend funds, including medicare, medicaid
and other payments on behalf of the licensee or operator of the
facility nursing home. Priority shall be given to expenditures
for current direct patient resident care or the transfer of
patients residents. Expenditures other than normal operating
expenses totaling more than twenty thousand dollars shall be
approved by the circuit court.
The person charged with temporary management shall be an
officer of the court, shall is not be liable for conditions at
the facility nursing home which existed or originated prior to
his or her appointment and shall is not be personally liable,
except for his or her own gross negligence and intentional acts
which result in injuries to persons or damage to property at the
facility nursing home during his or her temporary management.
All compensation and per diem costs of the temporary manager
shall be paid by the nursing home. The costs for the temporary
manager for any thirty-day period may not exceed the seventy- fifth percentile of the allowable administrators salary as
reported on the most recent cost report for the nursing home's
peer group as determined by the director. The temporary manager
shall bill the nursing home for compensation and per diem costs. Within fifteen days of receipt of the bill, the nursing home
shall pay the bill or contest the costs for which it was billed
to the court. Such costs shall be recoverable through recoupment
from future reimbursement from the state medicaid agency in the
same fashion as a benefits overpayment.
To administer a nursing home, The temporary management
shall promptly employ a at least one person who is licensed as a
nursing home administrator in West Virginia.
No person shall impede the operation of a temporary
management. There shall be an automatic stay for a ninety-day
period subsequent to the establishment of a temporary management
of any action that would interfere with the functioning of the
facility, including, but not limited to, cancellation of
insurance policies, termination of utility services, attachments
to working capital accounts, foreclosures, evictions and
repossessions of equipment used in the facility.
A temporary management established for the purpose of making
improvements in order to bring a facility nursing home into
compliance with applicable requirements shall may not be
terminated until the court has determined that the facility
nursing home has the management capability to ensure continued
compliance with all applicable requirements, except if the court
has not made such determination within six months of the
establishment of the temporary management, the temporary
management terminates by operation of law at that time, and the
facility nursing home shall be closed. After the termination of
the temporary management, the person who was responsible for the temporary management shall make an accounting to the court, and
after deducting from receipts the costs of the temporary
management, expenditures and civil penalties and interest no
longer subject to appeal, in that order, any excess shall be paid
to the licensee or operator of the facility nursing home.
(f) The assessments for penalties and for costs of actions
taken under this article shall have interest assessed at two five
percent on the last day of each month after the month in which
occurs the thirtieth day after receipt of notice of such
assessment or after the month in which occurs the thirtieth day
per annum beginning thirty days after receipt of notice of such
assessment or thirty days after receipt of the director's final
order following a hearing, whichever is later. All such
assessments against a facility nursing home that are unpaid shall
be added to the facility's nursing home's licensure fee and may
be filed as a lien against the property of the licensee or
operator of the facility nursing home. Funds received from such
assessments shall be deposited as funds received in section ten
of this article.
(g) The board of health shall have the power to promulgate
emergency director may propose additional regulations rules and
emergency rules that expand the power of the director in excess
of that provided in this article to the extent required to comply
with federal requirements, but any such regulations rules shall
expand the power of the director to the minimum extent required
by federal requirements. Such regulations rules are subject to
the provisions of article three, chapter twenty-nine-a of this code.
(h) The opportunity for a hearing on an action by the
director taken under this section shall be as provided in section
twelve of this article.
§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 upon timely written request, have the opportunity for a
hearing by the director to request an informal and formal hearing
at which he 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 such 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.
Following such hearing the director shall make and enter a
written order either dismissing the complaint or taking such
action as is authorized in this article. The written order of
the director shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code, and a copy of such order and
accompanying findings and conclusions shall be served upon the
licensee and his attorney of record, if any, by certified mail,
return receipt requested. If the director suspends a facility's
license, it shall also specify the conditions giving rise to such
suspension, to be corrected by the licensee during the period of
suspension in order to entitle the licensee to reinstatement of
his license. If the director revokes a license, the director may
stay the effective date of revocation by not more than ninety
days upon a showing that such delay is necessary to assure
appropriate placement of patients. The order of the director
shall be final unless vacated or modified upon judicial review
thereof in accordance with the provisions of section thirteen of
this article.
(b) In addition to all other powers granted by this chapter,
the director may hold the case under advisement and make a
recommendation as to requirements to be met by said licensee in
order to avoid either suspension or revocation. In such a case,
the director shall enter an order accordingly and so notify the
licensee and his attorney of record, if any, by certified mail,
return receipt requested. If the licensee meets the requirements
of such order, the director shall enter an order showing
satisfactory compliance and dismissing the complaint and shall so
notify the licensee and his attorney of record, if any, by
certified mail, return receipt requested. 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.
§16-5C-14. Legal counsel and services for the director.
(a) Legal counsel and services for the director in all
administrative hearings may be provided by the attorney general
or a staff attorney and all proceedings in any circuit court and
the supreme court of appeals shall be provided by the attorney
general, or his or her assistants, or an attorney employed by the
director in proceedings in any circuit court by the prosecuting
attorney of the county as well, all without additional
compensation.
(b) The governor may appoint counsel for the director, who shall perform such legal services in representing the interests
of patients residents in nursing homes and personal care homes in
matters under the jurisdiction of the director as the governor
shall direct. It shall be the duty of such counsel to appear for
the patients residents in all cases where they are not
represented by counsel. The compensation of such counsel shall
be fixed by the governor.
§16-5C-15. Unlawful acts; penalties; injunctions; private right
of action.
(a) Whoever advertises, announces, establishes or maintains,
or is engaged in establishing or maintaining a nursing home or
personal care home without a license granted under section six of
this article, or who prevents, interferes with or impedes in any
way the lawful enforcement of this article shall be guilty of a
misdemeanor and, upon conviction thereof, shall be punished for
the first offense by a fine of not more than one hundred dollars,
or by imprisonment in the county or regional jail for a period of
not more than ninety days, or by both such fine and imprisonment,
at the discretion of the court. For each subsequent offense, the
fine may be increased to not more than two hundred fifty dollars,
with imprisonment in the county or regional jail for a period of
not more than ninety days, or by both such fine and imprisonment,
at the discretion of the court. Each day of a continuing
violation after conviction shall be considered a separate
offense.
(b) The director may in his or her discretion bring an
action to enforce compliance with this article or any rule regulation or order hereunder whenever it shall appear to the
director that any person has engaged in, or is engaging in, an
act or practice in violation of this article or any rule
regulation or order hereunder, or whenever it shall appear to the
director that any person has aided, abetted or caused, or is
aiding, abetting or causing such an act or practice. Upon
application by the director, the circuit court of the county in
which the conduct has occurred or is occurring, or if emergency
circumstances occur, the circuit court of Kanawha County, shall
have jurisdiction to grant without bond a permanent or temporary
injunction, decree or restraining order.
Whenever the director shall have refused to grant or renew
a license, or shall have revoked a license required by law to
operate or conduct a nursing home, or personal care home, or
shall have ordered a person to refrain from conduct violating the
rules and regulations of the board of health of the director, and
the person deeming himself or herself aggrieved by such refusal
or revocation or order shall have appealed the action of the
director, the court may, during pendency of such appeal, issue a
restraining order or injunction upon proof that the operation of
the facility nursing home or its failure to comply with the order
of the director adversely affects the well-being or safety of the
patients residents of the facility nursing home. Should a person
who is refused a license or the renewal of a license to operate
or conduct a nursing home or personal care home or whose license
to operate is revoked or who has been ordered to refrain from
conduct or activity which violates the rules and regulations of the board of health of the director, fail to appeal or should
such appeal be decided favorably to the director, then the court
shall issue a permanent injunction upon proof that the person is
operating or conducting a nursing home or personal care home
without a license as required by law, or has continued to violate
the rules and regulations of the board of health of the director.
(c) Any facility nursing home that deprives a patient
resident of any right or benefit created or established for the
well-being of this patient resident by the terms of any contract,
by any state statute or regulation rule, or by any applicable
federal statute or regulation, shall be liable to said patient
the resident for injuries suffered as a result of such
deprivation. Upon a finding that a patient resident has been
deprived of such a right or benefit, and that the patient
resident has been injured as a result of such deprivation, and
unless there is a finding that the facility nursing home
exercised all care reasonably necessary to prevent and limit the
deprivation and injury to the patient resident, compensatory
damages shall be assessed in an amount sufficient to compensate
such patient the resident for such injury. In addition, where
the deprivation of any such right or benefit is found to have
been willful or in reckless disregard of the lawful rights of the
patient resident, punitive damages may be assessed. A patient
resident may also maintain an action pursuant to this section for
any other type of relief, including injunctive and declaratory
relief, permitted by law. Exhaustion of any available
administrative remedies shall may not be required prior to commencement of suit hereunder.
The amount of damages recovered by a patient resident, in an
action brought pursuant to this section, shall be exempt for
purposes of determining initial or continuing eligibility for
medical assistance under article four, chapter nine of this code,
and shall may neither be taken into consideration nor required to
be applied toward the payment or part payment of the cost of
medical care or services available under said article.
Any waiver by a patient resident or his or her legal
representative of the right to commence an action under this
section, whether oral or in writing, shall be null and void as
contrary to public policy.
(d) The penalties and remedies provided in this section are
cumulative and shall be in addition to all other penalties and
remedies provided by law.
§16-5C-16. Availability of reports and records.
The director shall make available for public inspection and
at a nominal cost provide copies of all inspections and other
reports of facilities nursing homes filed with or issued by the
director. Nothing contained in this section may be construed or
deemed to allow the public disclosure of confidential medical,
social, personal or financial records of any patient resident.
The board of health director shall adopt such regulations rules
as may be necessary to give effect to the provisions of this
section and to preserve the confidentiality of medical, social,
personal or financial records of patients residents.
§16-5C-17. Licenses and rules in force.
All licenses for nursing homes and personal care homes which
are in force on the first day of July, one thousand nine hundred
eighty-eight ninety-five, shall continue in full force and effect
during the period for which issued unless sooner revoked as
provided in this article.
All regulations rules in effect on the first day of July,
one thousand nine hundred eighty-eight ninety-five, which were
adopted by the board director relating to licensing nursing homes
or personal care homes, shall remain in full force and effect
until altered, amended or repealed by the board of health
director.
§16-5C-18. Separate accounts for residents' personal funds;
consent for use; records; penalties.
(a) Each nursing home and personal care home subject to the
provisions of this article shall hold in a separate account and
in trust each patient's resident's personal funds deposited with
the facility nursing home.
(b) No person may use or cause to be used for any purpose
the personal funds of any patient resident admitted to any such
facility nursing home unless consent for the use thereof has been
obtained from the patient resident or from a committee or
guardian or relative.
(c) Each nursing home and personal care home shall maintain
a true and complete record of all receipts for any disbursements
from the personal funds account of each patient resident in the
facility nursing home, including the purpose and payee of each
disbursement, and shall render a true account of such record to the patient resident or his or her representative upon demand and
upon termination of the patient's resident's stay in the facility
nursing home.
(d) Any person or corporation who violates any subsection of
this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than one thousand dollars, or
imprisoned in the county jail not more than one year, or both
fined and imprisoned.
(e) Reports provided to review organizations are
confidential unless inaccessibility of information interferes
with the director's ability to perform his or her oversight
function as mandated by federal regulations and this section.
ARTICLE 5D. PERSONAL CARE HOMES.
§16-5D-1. Purpose.
It is the policy of this state to encourage and promote the
development and utilization of resources to ensure the effective
care and treatment of persons who are dependent upon the services
of others by reason of physical or mental impairment who may
require limited and intermittent nursing care, including those
individuals who qualify for and are receiving services
coordinated by a licensed hospice. Such care and treatment
requires a living environment for such persons which, to the
extent practicable, will approximate a normal home environment.
To this end, the guiding principle for administration of the laws
of the state is that such persons shall be encouraged and
assisted in securing necessary care and treatment in
noninstitutional surroundings. In recognition that for many such persons effective care and treatment can only be secured from
proprietary, voluntary and governmental personal care homes it is
the policy of this state to encourage, promote and require the
maintenance of personal care homes so as to ensure protection of
the rights and dignity of those using the services of personal
care homes.
The provisions of this article are hereby declared to be
remedial and shall be liberally construed to effectuate its
purposes and intents.
§16-5D-2. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) "Deficiency" means a statement of the rule and the fact
that compliance has not been established and the reasons
therefor;
(b) "Department" means the state department of health and
human resources;
(c) "Director" means the secretary of the department of
health and human resources or his or her designee;
(d) "Division" means the bureau for public health of the
state department of health and human resources;
(e) "Limited and intermittent nursing care" means direct
hands on nursing care of an individual who needs no more than two
hours of nursing care per day for a period of time no longer than
ninety consecutive days per episode. This care may only be
provided when the need for such care meets these factors: (1)
The resident requests to remain in the personal care home; (2) the resident is advised of the availability of other specialized
health care facilities to treat his or her condition; and (3) the
need for such care is the result of a medical pathology or a
result of the normal aging process. Limited and intermittent
nursing care may only be provided by or under the supervision of
a registered professional nurse and in accordance with rules
proposed by the secretary for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of
this code;
(f) "Nursing care" means those procedures commonly employed
in providing for the physical, emotional and rehabilitational
needs of the ill or otherwise incapacitated which require
technical skills and knowledge beyond that which the untrained
person possesses, including, but not limited to, such procedures
as: Irrigations, catheterization, special procedures
contributing to rehabilitation and administration of medication
by any method which involves a level of complexity and skill in
administration not possessed by the untrained person;
(g) "Person" means an individual and every form of
organization, whether incorporated or unincorporated, including
any partnership, corporation, trust, association or political
subdivision of the state;
(h) "Personal assistance" means personal services,
including, but not limited to, the following: Help in walking,
bathing, dressing, feeding or getting in or out of bed, or
supervision required because of the age or mental impairment of
the resident;
(i) "Personal care home" means any institution, residence or
place, or any part or unit thereof, however named, in this state
which is advertised, offered, maintained or operated by the
ownership or management, whether for a consideration or not, for
the express or implied purpose of providing accommodations and
personal assistance and supervision, for a period of more than
twenty-four hours, to four or more persons who are dependent upon
the services of others by reason of physical or mental impairment
who may require limited and intermittent nursing care, including
those individuals who qualify for and are receiving services
coordinated by a licensed hospice: Provided, That services
utilizing equipment which requires auxiliary electrical power in
the event of a power failure may not be used unless the personal
care home has a backup power generator: Provided, however, That
the care or treatment in a household, whether for compensation or
not, of any person related by blood or marriage, within the
degree of consanguinity of second cousin to the head of the
household, or his or her spouse, may not be deemed to constitute
a personal care home within the meaning of this article. Nothing
contained in this article applies to hospitals, as defined under
section one, article five-b of this chapter; or state
institutions, as defined under section three, article one,
chapter twenty-five of this code or section six, article one,
chapter twenty-seven of this code; or personal care homes
operated by the federal government or the state; or institutions
operated for the treatment and care of alcoholic patients; or
offices of physicians; or hotels, boarding homes or other similar places that furnish to their guests only room and board; or to
homes or asylums operated by fraternal orders pursuant to article
three, chapter thirty-five of this code;
(j) "Resident" means an individual living in a personal care
home for the purpose of receiving personal assistance or limited
and intermittent nursing services from the home;
(k) "Secretary" means the secretary of the state department
of health and human resources or his or her designee; and
(l) "Substantial compliance" means a level of compliance
with the rules such that identified deficiencies pose no greater
risk to resident health or safety than the potential for causing
minimal harm.
The secretary may define in rules any term used herein which
is not expressly defined.
§16-5D-3. Powers, duties and rights of director.
In the administration of this article, the director has the
following powers, duties and rights:
(a) To enforce rules and standards for personal care homes;
which are adopted, promulgated, amended or modified by the
secretary;
(b) To exercise as sole authority all powers relating to the
issuance, suspension and revocation of licenses of personal care
homes;
(c) To enforce rules adopted, promulgated, amended or
modified by the secretary governing the qualification of
applicants for personal care home licenses, including, but not
limited to, educational requirements, financial requirements, personal and ethical requirements;
(d) To receive and disburse federal funds and to take
whatever action not contrary to law as may be proper and
necessary to comply with the requirements and conditions for the
receipt of federal funds;
(e) To receive and disburse for authorized purposes any
moneys appropriated for the division by the Legislature;
(f) To receive and disburse for purposes authorized by this
article, any funds that may come to the division by gift, grant,
donation, bequest or devise, according to the terms thereof, as
well as funds derived from the division's operation, or
otherwise;
(g) To make contracts, and to execute all instruments
necessary or convenient in carrying out the director's functions
and duties; and all such contracts, agreements and instruments
shall be executed by the director;
(h) To appoint officers, agents, employees and other
personnel and fix their compensation;
(i) To offer and sponsor educational and training programs
for personal care homes' administrative, management and
operational personnel;
(j) To undertake survey, research and planning projects and
programs relating to administration and operation of personal
care homes and to the health, care, treatment and service in
general of residents of such homes;
(k) To assess civil penalties for violations of personal
care home standards, in accordance with section ten of this article;
(l) To inspect any personal care home and any records
maintained therein, subject to the provisions of section ten of
this article;
(m) To establish and implement procedures, including
informal conferences, investigations and hearings, subject to
applicable provisions of article three, chapter twenty-nine-a of
this code, and to enforce compliance with the provisions of this
article and with rules issued hereunder, by the secretary;
(n) To subpoena witnesses and documents, administer oaths
and affirmations, and to examine witnesses under oath for the
conduct of any investigation or hearing. Upon failure of a
person without lawful excuse to obey a subpoena to give testimony
and upon reasonable notice to all persons affected thereby, the
director may apply to the circuit court of the county in which
the hearing is to be held or to the circuit court of Kanawha
County for an order compelling compliance;
(o) To make complaint or cause proceedings to be instituted
against any person for the violation of the provisions of this
article or of rules issued hereunder, by the secretary. Such
action may be taken by the director without the sanction of the
prosecuting attorney of the county in which proceedings are
instituted, if the prosecuting attorney fails or refuses to
discharge his or her duty. The circuit court of Kanawha County
or the circuit court of the county in which the conduct has
occurred shall have jurisdiction in all civil enforcement actions
brought under this article and may order equitable relief without bond. In no such case may the director or any person acting
under the director's direction be required to give security for
costs;
(p) To delegate authority to the director's employees and
agents to perform all functions of the director except the making
of final decisions in adjudications; and
(q) To submit an annual report to the governor, the
Legislature and the public. The report shall describe the
personal care home licensing and investigatory activities of the
division during the year, and the nature and status of other
activities of the division, and may include comment on the acts,
policies, practices or procedures of any public or private agency
that affect the rights, health or welfare of residents of
personal care homes. The annual report shall include a list of
all personal care homes in the state and such of the following
information as the director determines to apply: Whether the
homes are proprietary or nonproprietary; the classification of
each home; the name of the owner or owners; the total number of
beds; the number of private and semi-private rooms; the costs per
diem for private residents; the number of full-time employees and
their professions; recreational programs; services and programs
available as well as the costs thereof; and whether or not those
personal care homes listed accept medicare and medicaid
residents. The report shall also contain the division's
recommendations as to changes in law or policy which it deems
necessary or appropriate for the protection of the rights, health
or welfare of residents of personal care homes in the state.
§16-5D-4. Administrative and inspection staff.
The director may, as he or she determines necessary, employ
administrative employees, inspectors or other persons as may be
necessary to properly carry out the provisions of this article.
All employees of the division shall be members of the state civil
service system. Such inspectors and other employees as may be
duly designated by the director shall act as the director's
representatives and, under the direction of the director, shall
enforce the provisions of this article and all duly promulgated
rules of the secretary and, in the discharge of official duties,
shall have the right of entry into any place maintained as a
personal care home at any time.
§16-5D-5. Rules; minimum standards for personal care homes.
(a) All rules shall be approved by the secretary and
proposed in the manner provided by the provisions of article
three, chapter twenty-nine-a of this code. The secretary shall
adopt, amend or repeal such rules as may be necessary or proper
to carry out the purposes and intent of this article and to
enable the director to exercise the powers and perform the duties
conferred upon the director by this article.
(b) The secretary shall propose rules establishing minimum
standards of operation of personal care homes including, but not
limited to, the following:
(1) Administrative policies, including: (A) An affirmative
statement of the right of access to personal care homes by
members of recognized community organizations and community legal
services programs whose purposes include rendering assistance without charge to residents, consistent with the right of
residents to privacy; and (B) a statement of the rights and
responsibilities of residents;
(2) Minimum numbers and qualifications of personnel,
including management, medical and nursing, aides, orderlies and
support personnel, according to the size and classification of
the personal care home;
(3) Safety requirements;
(4) Sanitation requirements;
(5) Protective and personal services to be provided;
(6) Dietary services to be provided;
(7) Maintenance of health records;
(8) Social and recreational activities to be made available;
(9) Physical facilities;
(10) Requirements related to provision of limited and
intermittent nursing; and
(11) Such other categories as the secretary determines to be
appropriate to ensure resident's health, safety and welfare.
(c) The secretary shall include in rules detailed standards
for each of the categories of standards established pursuant to
subsections (b) and (d) of this section, and shall classify such
standards as follows: (1) Class I standards are standards the
violation of which, as the secretary determines, would present
either an imminent danger to the health, safety or welfare of any
resident or a substantial probability that death or serious
physical harm would result; (2) Class II standards are standards
which the secretary determines have a direct or immediate relationship to the health, safety or welfare of any resident,
but which do not create imminent danger; (3) Class III standards
are standards which the secretary determines have an indirect or
a potential impact on the health, safety or welfare of any
resident.
(d) A personal care home must attain substantial compliance
with standards established pursuant to section five of this
article, and such other requirements for a license as may be
established by rule under this article.
§16-5D-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 personal care home within this state unless and until
he or she obtains a valid license therefor as provided in this
article, 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 personal care
home, 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 applicant
is in compliance with the standards for personal care homes as
established by this article and the rules lawfully promulgated by the secretary 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: (A) Of
each person who, as a stockholder or otherwise, has a proprietary
interest of ten percent or more in the applicant; (B) of each
officer and director of a corporate applicant; (C) of each
trustee and beneficiary of an applicant which is a trust; and (D)
where a corporation has a proprietary interest of twenty-five
percent or more in an applicant, the name, address and principal
occupation of each officer and director of the corporation;
(3) The name and address of the owner of the premises of the
personal care home or proposed personal care home, if he or she
is a different person from the applicant, and in such case, the
name and address: (A) Of each person who, as a stockholder or
otherwise, has a proprietary interest of ten percent or more in
the owner; (B) of each officer and director of a corporate
applicant; (C) of each trustee and beneficiary of the owner if it
is a trust; and (D) where a corporation has a proprietary
interest of twenty-five percent or more in the owner, the name
and address of each officer and director of the corporation;
(4) Where the applicant is the lessee or the assignee of the
personal care home or the premises of the proposed personal care
home, a signed copy of the lease and any assignment thereof;
(5) The name and address of the personal care home or the
premises of the proposed personal care home;
(6) The proposed bed quota of the personal care home and the proposed bed quota of each unit thereof;
(7) (A) An organizational plan for the personal care home
indicating the number of persons employed or to be employed, the
positions and duties of all employees; (B) the name and address
of the individual who is to serve as administrator; and (C) such
evidence of compliance with applicable laws and rules governing
zoning, buildings, safety, fire prevention and sanitation as the
director may require; and
(8) Such additional information as the director may require.
(b) Upon receipt and review of an application for license
made pursuant to subsection (a) of this section, and inspection
of the applicant personal care home pursuant to section ten of
this article, the director shall issue a license if he or she
finds:
(1) That an individual applicant, and every partner,
trustee, officer, director and controlling person of an applicant
which is not an individual, is a person responsible and suitable
to operate or to direct or participate in the operation of a
personal care home 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 personal care home is under the supervision of
an administrator who is qualified by training and experience; or
(3) That the personal care home is in substantial compliance
with standards established pursuant to section five of this
article, and such other requirements for a license as the secretary may establish by rule under this article.
The director may deny an initial or renewal license if the
information provided in an application or report is known by the
applicant to be false, or the applicant fails to report required
information, or for any other reason permitted by law or rules
promulgated pursuant to 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, and the expiration date. Licenses shall be issued for a
period not to exceed one year for personal 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 division of health in conformance with the provisions
of this article and the rules issued thereunder, and prior to the
expiration date of the license, shall continue in effect until:
(A) One year following the expiration date of the license; or (B)
the date of the revocation or suspension of the 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 is not transferable or assignable: Provided,
however, That in the case of the transfer of ownership of a
personal care home 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 personal
care home for which it is issued so as to be accessible to and in plain view of all residents and visitors of the personal care
home.
(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
rules promulgated by the secretary hereunder; the application
shall be accompanied by the information required in subdivisions
(1), (2) and (3) of this subsection.
(1) A balance sheet of the personal care home 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 personal care home 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.
(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 or her discretion issue a provisional
license, provided that care given in the personal care home is
adequate for resident needs and the personal care home has
demonstrated improvement and evidences potential for substantial
compliance within the term of the license: Provided, That a
provisional renewal may not be issued for a period greater than one year, may not be renewed, and may not be issued to any
personal care home 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 sixty- five dollars for an original personal care home license shall be
paid at the time application is made for the license. An average
cost of all direct costs for the initial licensure for the
preceding ten facilities based on the size of the facility's
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 six dollars per bed per year for personal
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 licensure fees for inflation based upon the
consumer price index. The bed capacity for the holder of each
license shall be determined by the director. All license fees
shall be due and payable to the director, annually, and in the
manner set forth in the rules promulgated by the secretary. The
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.
§16-5D-7. Cost disclosure; surety for residents' funds.
(a) Each personal care home shall disclose in writing to all prospective residents a complete and accurate list of all costs
which may be incurred by them. Residents are not liable for any
cost not so disclosed.
(b) If the personal care home handles any money for
residents within the personal care home, the licensee or his or
her authorized representative shall give a bond in an amount
consistent with this subsection and with such surety as the
director shall approve. The bond shall be upon condition that
the licensee shall hold separately and in trust all residents'
funds deposited with the licensee, shall administer the funds on
behalf of the resident in the manner directed by the depositor,
shall render a true and complete account to the depositor and the
director when requested, and at least quarterly to the resident,
and upon termination of the deposit, shall account for all funds
received, expended, and held on hand. The licensee shall file a
bond in a sum to be fixed by the director based upon the
magnitude of the operations of the applicant, but which sum may
not be less than two thousand five hundred dollars.
Every person injured as a result of any improper or unlawful
handling of the money of a resident of a personal care home may
bring an action in a proper court on the bond required to be
posted by the licensee pursuant to this subsection for the amount
of damage suffered as a result thereof to the extent covered by
the bond. Whenever the director determines that the amount of
any bond which is filed pursuant to this subsection is
insufficient to adequately protect the money of residents which
is being handled, or whenever the amount of any bond is impaired by any recovery against the bond, the director may require the
licensee to file an additional bond in such amount as necessary
to adequately protect the money of residents being handled.
The provisions of this subsection do not apply if the
licensee handles less than twenty-five dollars per resident and
less than five hundred dollars for all residents in any month.
§16-5D-8. Investigation of complaints.
The secretary shall establish by rule procedures for prompt
investigation of all complaints of alleged violations by personal
care homes of applicable requirements of state law or rules,
except for such complaints that the director determines are
willfully intended to harass a licensee or are without any
reasonable basis. Such procedures shall include provisions for
ensuring the confidentiality of the complainant and of any other
person so named in the complaint, and for promptly informing the
complainant and the personal care home involved of the results of
the investigation.
If, after its investigation, the director determines that
the complaint has merit, the director shall take appropriate
disciplinary action and shall advise any injured party of the
possibility of a civil remedy under this article.
No personal care home may discharge or in any manner
discriminate against any resident or employee for the reason that
the resident or employee has filed a complaint or participated in
any proceeding specified in this article. Violation of this
prohibition by any personal care home constitutes ground for the
suspension or revocation of the license of the personal care home as provided in section eleven of this article. Any type of
discriminatory treatment of a resident or employee by whom, or
upon whose behalf, a complaint has been submitted to the
director, or any proceeding instituted under this article, within
one hundred twenty days of the filing of the complaint or the
institution of the action, shall raise a rebuttable presumption
that the action was taken by the personal care home in
retaliation for the complaint or action.
§16-5D-9. Inspections.
The director and any duly designated employee or agent
thereof shall have the right to enter upon and into the premises
of any personal care home at any time for which a license has
been issued, for which an application for license has been filed
with the director, or which the director has reason to believe is
being operated or maintained as a personal care home without a
license. If entry is refused by the owner or person in charge of
the personal care home, the director shall apply to the circuit
court of the county in which the personal care home is located or
the circuit court of Kanawha County for an order authorizing
inspection, and the court shall issue an appropriate order if it
finds good cause.
The director, by the director's authorized employees or
agents, shall conduct at least one inspection prior to issuance
of a license pursuant to section six of this article, and shall
conduct periodic unannounced inspections thereafter, to determine
compliance by the personal care home with applicable statutes and
rules promulgated thereunder. All personal care homes shall comply with rules of the state fire commission. The state fire
marshal, by his or her employees or authorized agents, shall make
all fire, safety and like inspections. The director may provide
for such other inspections as the director may deem necessary to
carry out the intent and purpose of this article. If after
investigating a complaint, the director determines that the
complaint is substantiated and that an immediate and serious
threat to a resident's health or safety exists, the director may
invoke any remedies available pursuant to section eleven of this
article. Any personal care home aggrieved by a determination or
assessment made pursuant to this section shall have the right to
an administrative appeal as set forth in section twelve of this
article.
§16-5D-10. Reports of inspections; plans of correction;
assessment of penalties and use of funds derived
therefrom; hearings.
(a) Reports of all inspections made pursuant to section nine
of this article shall be in writing and filed with the director,
and shall list all deficiencies in the personal care home's
compliance with the provisions of this article and the rules
adopted by the secretary hereunder. The director shall send a
copy of the report to the personal care home by certified mail,
return receipt requested, and shall specify a time within which
the personal care home shall submit a plan for correction of
deficiencies, which plan shall be approved, rejected or modified
by the director. The surveyors shall allow audio taping of the
exit conference for licensure inspections with all costs directly associated with the taping to be paid by the personal care home
provided that an original tape is provided to surveyors at the
end of taping.
(b) Upon a personal care home's failure to submit a plan of
correction which is approved by the director, or to correct any
deficiency within the time specified in an approved plan of
correction, the director may assess civil penalties as
hereinafter provided or may initiate any other legal or
disciplinary action as provided by this article.
(c) Nothing in this section may be construed to prohibit the
director from enforcing a rule, administratively or in court,
without first affording formal opportunity to make correction
under this section, where, in the opinion of the director, the
violation of the rule jeopardizes the health or safety of
residents or where the violation of the rule is the second or
subsequent violation occurring during a period of twelve full
months.
(d) Civil penalties assessed against personal care homes
shall be classified according to the nature of the violation as
defined in subsection (c), section five of this article and rules
promulgated thereunder by the secretary, as follows: For each
violation of a Class I standard, a civil penalty of not less than
fifty nor more than five hundred dollars shall be imposed; for
each violation of a Class II standard, a civil penalty of not
less than twenty-five nor more than fifty dollars shall be
imposed; for each violation of a Class III standard, a civil
penalty of not less than ten nor more than twenty-five dollars shall be imposed. Each day a violation continues, after the date
of citation, shall constitute a separate violation. The date of
citation is the date the facility receives the written statement
of deficiencies.
(e) The director shall assess a civil penalty not to exceed
two thousand dollars against any individual who notifies, or
causes to be notified, a personal care home of the time or date
on which an inspection is scheduled to be conducted under this
article.
(f) If the director assesses a penalty under this section,
the director shall cause delivery of notice of the penalty by
personal service or by certified mail. The notice shall state
the amount of the penalty, the action or circumstance for which
the penalty is assessed, the requirement that the action or
circumstance violates, and the basis upon which the director
assessed the penalty and selected the amount of the penalty.
(g) The director shall, in a civil judicial proceeding,
recover any unpaid assessment which has not been contested under
section twelve of this article within thirty days of receipt of
notice of the assessment, or which has been affirmed under the
provisions of that section and not appealed within thirty days of
receipt of the director's final order, or which has been affirmed
on judicial review, as provided in section thirteen of this
article. All money collected by assessments of civil penalties
or interest shall be paid into a special resident benefit account
and shall be applied by the director only for the protection of
the health or property of residents of personal care homes operated within the state that the director finds to be
deficient, including payment for the costs of relocation of
residents to other facilities, operation of a personal care home
pending correction of deficiencies or closure, and reimbursement
of residents for personal funds lost.
(h) The opportunity for a hearing on an action taken under
this section shall be as provided in section twelve of this
article. In addition to any other rights of appeal conferred
upon a personal care home pursuant to this section, a personal
care home shall have the right to request a hearing and seek
judicial review pursuant to sections twelve and thirteen of this
article to contest the citing by the director of a deficiency on
an inspection report, irrespective of whether the deficiency
results in the imposition of a civil penalty.
§16-5D-11. License limitation, suspension, revocation; ban on
admissions; continuation of disciplinary
proceedings; closure, transfer of residents,
appointment of temporary management; assessment
of interest; collection of assessments; hearings.
(a) The director shall by order, impose a ban on the
admission of residents or reduce the bed quota of the personal
care home, or any combination thereof, where he or she finds upon
inspection of the personal care home that the licensee is not
providing adequate care under the personal care home's existing
bed quota, and that reduction in quota or imposition of a ban on
admissions, or any combination thereof, would place the licensee
in a position to render adequate care. Any notice to a licensee of reduction in quota or ban on new admissions shall include the
terms of the order, the reasons therefor, and the date set for
compliance.
(b) The director may suspend or revoke a license issued
under this article if he or she finds upon inspection that there
has been a substantial failure to comply with the provisions of
this article or the standards or rules promulgated pursuant
hereto.
(c) Whenever a license is limited, suspended or revoked
pursuant to this section, the director shall file an
administrative complaint stating facts constituting a ground or
grounds for the limitation, suspension or revocation. Upon the
filing of the administrative complaint, the director shall notify
the licensee in writing of the filing of the administrative
complaint, enclosing a copy of the complaint, and shall advise
the licensee of the availability of a hearing pursuant to section
twelve of this article. The notice and copy of the
administrative complaint shall be served on the licensee by
certified mail, return receipt requested.
(d) The suspension, expiration, forfeiture or cancellation
by operation of law or order of the director of a license issued
by the director, or the withdrawal of an application for a
license after it has been filed with the director, may not
deprive the director of the director's authority to institute or
continue a disciplinary proceeding, or a proceeding for the
denial of a license application, against the licensee or
applicant upon any ground provided by law or to enter an order denying the license application or suspending or revoking the
license or otherwise taking disciplinary action on any such
ground.
(e) In addition to other remedies provided in this article,
upon petition from the director, the circuit court of the county
in which the conduct has occurred or is occurring, or the circuit
court of Kanawha County, may determine that a personal care
home's deficiencies under this article constitute an emergency
immediately jeopardizing the health, safety, welfare, or rights
of its residents, and issue an order to:
(1) Close the personal care home;
(2) Transfer residents in the personal care home to other
facilities; or
(3) Appoint temporary management to oversee the operation of
the personal care home and to assure the health, safety, welfare
and rights of the personal care home's residents, where there is
a need for temporary management while:
(A) There is an orderly closure of the personal care home;
or
(B) Improvements are made in order to bring the personal
care home into compliance with all the applicable requirements of
this article.
If the director petitions a circuit court for the closure of
a personal care home, the transfer of residents, or the
appointment of a temporary management, the circuit court shall
hold a hearing no later than seven days thereafter, at which time
the director and the licensee or operator of the personal care home may participate and present evidence.
A circuit court may divest the licensee or operator of
possession and control of a personal care home in favor of
temporary management. The temporary management shall be
responsible to the court and shall have such powers and duties as
the court may grant to direct all acts necessary or appropriate
to conserve the property and promote the health, safety, welfare
and rights of the residents of the personal care home, including,
but not limited to, the replacement of management and staff, the
hiring of consultants, the making of any necessary expenditures
to close the personal care home or to repair or improve the
personal care home so as to return it to compliance with
applicable requirements, and the power to receive, conserve and
expend funds, including payments on behalf of the licensee or
operator of the personal care home. Priority shall be given to
expenditures for current direct resident care or the transfer of
residents.
The person charged with temporary management: (i) Shall be
an officer of the court; (ii) shall be paid by the licensee;
(iii) is not liable for conditions at the personal care home
which existed or originated prior to his or her or her
appointment; (iv) is not personally liable, except for his or her
or her own gross negligence and intentional acts which result in
injuries to persons or damage to property at the personal care
home during his or her temporary management.
No person may impede the operation of temporary management.
There shall be an automatic stay for a ninety-day period subsequent to the establishment of temporary management of any
action that would interfere with the functioning of the personal
care home, including, but not limited to, cancellation of
insurance policies, termination of utility services, attachments
to working capital accounts, foreclosures, evictions and
repossessions of equipment used in the personal care home.
A temporary management established for the purpose of making
improvements in order to bring a personal care home into
compliance with applicable requirements may not be terminated
until the court has determined that the personal care home has
the management capability to ensure continued compliance with all
applicable requirements, except if the court has not made such
determination within six months of the establishment of the
temporary management, the temporary management terminates by
operation of law at that time, and the personal care home shall
be closed. After the termination of the temporary management,
the person who was responsible for the temporary management shall
make an accounting to the court, and after deducting from
receipts the costs of the temporary management, expenditures and
civil penalties and interest no longer subject to appeal, in that
order, any excess shall be paid to the licensee or operator of
the personal care home.
(f) The assessments for penalties and for costs of actions
taken under this article shall have interest assessed at five
percent per annum beginning thirty days after receipt of notice
of the assessment or thirty days after receipt of the director's
final order following a hearing, whichever is later. All assessments against a personal care home that are unpaid shall be
added to the personal care home's licensure fee and may be filed
as a lien against the property of the licensee or operator of the
personal care home. Funds received from assessments shall be
deposited as funds received as provided in section ten of this
article.
(g) The secretary shall have the power to promulgate
emergency rules that expand the power of the director in excess
of that provided in this article to the extent required to comply
with federal requirements, but any such rules shall expand the
power of the director to the minimum extent required by federal
requirements. The rules are subject to the provisions of article
three, chapter twenty-nine-a of this code.
(h) The opportunity for a hearing on an action by the
director taken under this section shall be as provided in section
twelve of this article.
§16-5D-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, upon timely written request, have the opportunity for a
hearing by the director at which he or she may contest 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 the hearing and the
administrative procedures in connection with the hearing. The
licensee or applicant may also request an informal meeting with the director before the hearing.
Following the hearing the director shall make and enter a
written order either dismissing the complaint or taking such
action as is authorized in this article. The written order of
the director shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of the order and
accompanying findings and conclusions shall be served upon the
licensee and his or her attorney of record, if any, by certified
mail, return receipt requested. If the director suspends a
personal care home's license, it shall also specify the
conditions giving rise to the suspension, to be corrected by the
licensee during the period of suspension in order to entitle the
licensee to reinstatement of the license. If the director
revokes a license, the director may stay the effective date of
revocation by not more than ninety days upon a showing that the
delay is necessary to assure appropriate placement of residents.
The order of the director shall be final unless vacated or
modified upon judicial review thereof in accordance with the
provisions of section thirteen of this article.
(b) In addition to all other powers granted by this chapter,
the director may hold the case under advisement and make a
recommendation as to requirements to be met by the licensee in
order to avoid either suspension or revocation. In such a case,
the director shall enter an order accordingly and so notify the
licensee and his or her attorney of record, if any, by certified
mail, return receipt requested. If the licensee meets the requirements of the order, the director shall enter an order
showing satisfactory compliance and dismissing the complaint and
shall so notify the licensee and the licensee's attorney of
record, if any, by certified mail, return receipt requested.
§16-5D-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.
§16-5D-14. Legal counsel and services for the director.
(a) Legal counsel and services for the director in all
administrative hearings and all proceedings in any circuit court
and the supreme court of appeals shall be provided by the
attorney general, his or her assistants, or an attorney employed
by the director, in proceedings in any circuit court by the
prosecuting attorney of the county as well, all without
additional compensation.
(b) The governor may appoint counsel for the director, who
shall perform such legal services in representing the interests
of residents in personal care homes in matters under the jurisdiction of the director as the governor shall direct. It
shall be the duty of such counsel to appear for the residents in
all cases where they are not represented by counsel. The
compensation of such counsel shall be fixed by the governor.
§16-5D-15. Unlawful acts; penalties; injunctions; private right
of action.
(a) Whoever advertises, announces, establishes or maintains,
or is engaged in establishing or maintaining a personal care home
without a license granted under section six of this article, or
who prevents, interferes with or impedes in any way the lawful
enforcement of this article shall be guilty of a misdemeanor
and, upon conviction thereof, shall be punished for the first
offense by a fine of not more than one hundred dollars, or by
imprisonment in jail for a period of not more than ninety days,
or by both such fine and imprisonment, at the discretion of the
court. For each subsequent offense, the fine may be increased to
not more than two hundred fifty dollars, with imprisonment in
jail for a period of not more than ninety days, or both such fine
and imprisonment at the discretion of the court. Each day of a
continuing violation after conviction shall be considered a
separate offense.
(b) The director may in his or her discretion bring an
action to enforce compliance with this article or any rule, or
order hereunder, whenever it appears to the director that any
person has engaged in, or is engaging in, an act or practice in
violation of this article or any rule or order hereunder, or
whenever it appears to the director that any person has aided, abetted or caused, or is aiding, abetting or causing such an act
or practice. Upon application by the director, the circuit court
of the county in which the conduct has occurred or is occurring
shall have jurisdiction to grant without bond a permanent or
temporary injunction, decree or restraining order.
Whenever the director refuses to grant or renew a license,
or revokes a license required by law to operate or conduct a
personal care home, or orders a person to refrain from conduct
violating the rules of the secretary, and the person deeming
himself aggrieved by the refusal, revocation or order appeals
the action of the director, the court may, during pendency of the
appeal, issue a restraining order or injunction upon proof that
the operation of the personal care home or its failure to comply
with the order of the director adversely affects the well-being
or safety of the residents of the personal care home. Should a
person who is refused a license or the renewal of a license to
operate or conduct a personal care home or whose license to
operate is revoked or who has been ordered to refrain from
conduct or activity which violates the rules of the secretary,
fail to appeal or should such appeal be decided favorably to the
director, then the court shall issue a permanent injunction upon
proof that the person is operating or conducting a personal care
home without a license as required by law, or has continued to
violate the rules of the secretary.
(c) Any personal care home that deprives a resident of any
right or benefit created or established for the well-being of the
resident by the terms of any contract, by any state statute or rule, or by any applicable federal statute or regulation, shall
be liable to the resident for injuries suffered as a result of
the deprivation. Upon a finding that a resident has been
deprived of such a right or benefit, and that the resident has
been injured as a result of the deprivation, and unless there is
a finding that the personal care home exercised all care
reasonably necessary to prevent and limit the deprivation and
injury to the resident, compensatory damages shall be assessed in
an amount sufficient to compensate the resident for the injury.
In addition, where the deprivation of any right or benefit is
found to have been willful or in reckless disregard of the lawful
rights of the resident, punitive damages may be assessed. A
resident may also maintain an action pursuant to this section for
any other type of relief, including injunctive and declaratory
relief, permitted by law. Exhaustion of any available
administrative remedies may not be required prior to commencement
of suit hereunder.
The amount of damages recovered by a resident, in an action
brought pursuant to this section, are exempt for purposes of
determining initial or continuing eligibility for medical
assistance under article four, chapter nine of this code, and may
neither be taken into consideration nor required to be applied
toward the payment or part payment of the cost of medical care or
services available under said article.
Any waiver by a resident or his or her legal representative
of the right to commence an action under this section, whether
oral or in writing, shall be null and void as contrary to public policy.
(d) The penalties and remedies provided in this section are
cumulative and shall be in addition to all other penalties and
remedies provided by law.
§16-5D-16. Availability of reports and records.
The director shall make available for public inspection and
at a nominal cost provide copies of all inspections and other
reports of personal care homes filed with or issued by the
director. Nothing contained in this section may be construed or
deemed to allow the public disclosure of confidential medical,
social, personal or financial records of any resident. The
secretary shall propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty- nine-a of this code as may be necessary to give effect to the
provisions of this section and to preserve the confidentiality of
medical, social, personal or financial records of residents.
§16-5D-17. Licenses and rules in force.
(a) All licenses for personal care homes which are in force
on the first day of July, one thousand nine hundred ninety-seven,
shall continue in full force and effect during the period for
which issued unless sooner revoked as provided in this article.
(b) All rules in effect on the first day of July, one
thousand nine hundred ninety-seven, which were adopted by the
secretary relating to licensing personal care homes, shall remain
in full force and effect until altered, amended or repealed by
the secretary.
§16-5D-18. Separate accounts for residents' personal funds; consent for use; records; penalties.
(a) Each personal care home subject to the provisions of
this article shall hold in a separate account and in trust each
resident's personal funds deposited with the personal care home.
(b) No person may use or cause to be used for any purpose
the personal funds of any resident admitted to any personal care
home unless consent for the use thereof has been obtained from
the resident or from a committee or guardian or relative.
(c) Each personal care home shall maintain a true and
complete record of all receipts for any disbursements from the
personal funds account of each resident in the personal care
home, including the purpose and payee of each disbursement, and
shall render a true account of the record to the resident or his
or her representative upon demand and upon termination of the
resident's stay in the personal care home.
(d) Any person or corporation who violates any provision of
this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than one thousand dollars, or
imprisoned in jail not more than one year, or both fined and
imprisoned.
ARTICLE 5E. REGISTRATION AND INSPECTION OF SERVICE PROVIDERS IN
LEGALLY UNLICENSED HEALTH CARE HOMES.
§16-5E-1. Purpose.
It is the policy of this state to encourage the availability
of appropriate noninstitutional surroundings for the elderly and
for the care of persons in need limited and intermittent of
nursing care or personal assistance. The registration of providers of services to such consumers residents in unlicensed
facilities homes will help to identify where the services are
available and to ensure that individuals in unlicensed facilities
homes are receiving care appropriate to their needs.
§16-5E-1a. Powers, rights and duties of the director.
In the administration of this article, the director shall
have the following powers, duties and rights:
(a) To promulgate and enforce rules governing complaint
investigations within the homes of legally unlicensed health care
providers registered under this article. Such rules shall
include the minimum health, safety and welfare standards in the
following areas:
(1) Physical environment;
(2) Nutrition;
(3) Requirements related to limited and intermittent nursing
care;
(4) Medication administration;
(5) Protective and personal services to be provided;
(6) Treatment;
(7) Such other categories as the director determines to be
appropriate to ensure residents' health, safety and welfare.
(b) To exercise as sole authority all powers relating to
issuance, suspension and revocation of registration of legally
unlicensed homes providing health care;
(c) To issue directed plans of correction for deficiencies
identified during complaint investigations;
(d) To order closure of any home for failure to comply with a directed plan of corrections;
(e) To take all actions required under the provisions of
sections three, four, five, and six of this article; and
(f) To deny registration to any operator of a legally
unlicensed home who is listed on the state abuse registry.
§16-5E-2. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) The term "consumer" means an individual who is provided
services, whether or not for a fee, by a service provider, but
consumer does not include a person receiving services provided
by another who is related to him or her or the spouse thereof by
blood or marriage, within the degree of consanguinity of second
cousin. Limited and intermittent nursing care may only be
provided when the need for such care: (1) Arises from the
consumer's desire to remain in the facility; (2) the consumer is
advised of the availability of other specialized health care
facilities to treat his or her condition; and (3) the need for
such care is the result of a medical pathology or a result of
the normal aging process. Limited and intermittent nursing care
shall only be provided by or under the direct supervision of a
registered professional nurse and in accordance with rules
promulgated by the secretary of the department of health and
human resources. If limited and intermittent nursing care is
provided in an unlicensed health care facility, the facility
shall: (1) Provide consumers, at the time of admission, with the
name, address and telephone number of the offices of health facility licensure and certification, the state long-term care
ombudsman, and adult protective services, all within the
department of health and human resources; and (2) advise
consumers both orally and in writing of their right to file a
complaint with the aforementioned entities;
(b) (a) The term "Director" means the secretary of the
department of health and human resources or his or her designee.
(b) "Limited and intermittent nursing care" means direct
hands on nursing care of an individual who needs no more than two
hours of nursing care per day for a period of no longer than
ninety consecutive days per episode, which may only be provided
when the need for such care meets the following factors: (1) The
resident requests to remain in the home; (2) the resident is
advised of the availability of other specialized health care
facilities to treat his or her condition; and (3) the need for
such care is the result of a medical pathology or a result of
normal aging process. Limited and intermittent nursing care
shall be provided under the supervision of a registered
professional nurse and in accordance with rules promulgated by
the director.
(c) The term "Nursing care" means those procedures commonly
employed in providing for the physical, emotional and
rehabilitational needs of the ill or otherwise incapacitated
which require technical skills and knowledge beyond that which
the untrained person possesses, including, but not limited to,
such procedures as: Irrigations; catheterization; special
procedures contributing to rehabilitation; and administration of medication by any method prescribed by a physician which involves
a level of complexity and skill in administration not possessed
by the untrained person.
(d) The term "Personal assistance" means personal services,
including, but not limited to, the following: Help in walking,
bathing, dressing, feeding or getting in or out of bed, or
supervision required because of the age or physical or mental
impairment of the resident.
(e) "Resident" means an individual who is provided services,
whether or not for a fee, by a service provider, but resident
does not include a person receiving services provided by another
who is related to him or her or the spouse thereof by blood or
marriage, within the degree of consanguinity of the second
cousin. Residents, who are incapable of self-preservation, shall
be housed only on a ground floor level of the home with direct
egress to the outside. A registered unlicensed health care home
shall: (1) Provide residents at the time of admission with the
name, address and telephone number of the offices of health
facility licensure and certification, the state long-term care
ombudsman, and adult protective services, all within the
department of health and human resources; and (2) advise
residents both orally and in writing of their right to file a
complaint with the aforementioned entities.
(f) "Self-preservation" means that a person is at least
capable of removing him or her self from situations involving
imminent danger, such as fire.
(e) (g) The term "Service provider" means the individual administratively responsible for providing to consumers for a
period of more than twenty-four hours, whether for compensation
or not, services of personal assistance for one to three
consumers residents and who may require limited and intermittent
nursing care, including those individuals who qualify for and are
receiving services coordinated by a licensed hospice: Provided,
That services utilizing equipment which requires auxiliary
electrical power in the event of a power failure shall not may
not be used unless the health care facility home has a backup
power generator.
§16-5E-3. Registration of service providers required; form of
registration; information to be provided.
(a) Service providers shall register with the director. No
fee may be charged for registration. Registration information
shall be provided on a registration form or may be verbally
communicated to the director for placement by the director on the
form, but no provision of information shall may be deemed to meet
the registration requirement until the signature of the service
provider is recorded on the registration form.
(b) Information required for registration shall include the
following:
(1) Name, address and telephone number of the service
provider;
(2) Addresses Address and telephone numbers where services
are provided to consumers residents and the number of consumers
residents provided service; at each address
(3) The services, such as nursing care or personal assistance, provided to consumers residents; at each address and
(4) Other information required by rules promulgated by the
director.
(c) The director may deny registration if the information
provided in an application is known by the applicant to be false
or the applicant fails to report required information.
(d) A legally unlicensed provider may operate no more than
one legally unlicensed home.
§16-5E-5. Inspections; right of entry.
The director may employ inspectors to enforce the provisions
of this article. These inspectors shall have the right of entry
into any place where services are provided by a service provider,
to determine the number of consumers residents therein and the
adequacy of services being provided to them. The director may
obtain a search warrant to inspect those premises that the
director has reason to believe are being used to provide
services. The inspectors shall have access to all parts of the
home and grounds, including, but not limited to, all areas of all
buildings on the grounds of a home, food supplies, resident
medications and resident medical records. Inspectors shall also
be permitted to conduct private interviews with all residents and
staff of a home.
If after investigating a complaint, the director determines
that the complaint is substantiated and that an immediate and
serious threat to a resident's health or safety exists, the
director may petition the circuit court for an injunction, order
of abatement or other appropriate action or proceeding to: (1) Close the facility home; (2) transfer consumers residents in the
facility home to other facilities; or (3) appoint temporary
management to oversee the operation of the facility home to
assure the health, safety, welfare and rights of the facility's
home's consumers residents where there is a need for temporary
management to ensure compliance with the court's order. Any
facility home aggrieved by a determination or assessment made
pursuant to this section shall have the right to an
administrative appeal as set forth in section twelve, article
five-c of this chapter.
§16-5E-6. Enforcement; criminal penalties.
(a) Any service provider who fails to register with the
director shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than five hundred dollars or
more than twenty-five hundred dollars or imprisoned in the county
jail not less than ten days, or more than thirty days after
notice by certified mail by the director to such service provider
at of the requirements of this article.
(b) Any person who interferes with or impedes in any way the
lawful enforcement of the provisions of this article is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not
less than five hundred dollars or more than twenty-five hundred
dollars or imprisoned in the county jail not less than ten days,
or more than thirty: Provided, That prior to the first day of
July, one thousand nine hundred eighty-nine, no such penalty
shall may be imposed upon a service provider until thirty days
after notice by certified mail by the director to such the service provider at the requirements of this article.
(c) If after investigating a complaint, the director
determines that the home is housing more than three residents,
the director shall assess a civil penalty of fifty dollars per
day per the number of residents exceeding three. Each day the
violation continues, after the date of citation shall constitute
a separate violation. The date of citation is the date the
facility receives the written statement of deficiencies.
(c) (d) The director may in his or her discretion bring an
action to enforce compliance with the provisions of this article.
(d) (e) The circuit court of Kanawha County or the circuit
court of the county in which the conduct occurred shall have
jurisdiction in all civil enforcement actions brought under this
article and may order equitable relief without bond.
ARTICLE 5H. RESIDENTIAL BOARD AND CARE HOMES.
§16-5H-1. Purpose.
It is the policy of this state to encourage and promote the
development and utilization of resources to ensure the effective
care and treatment of persons who are dependent upon the services
of others by reason of physical or mental impairment or who may
require limited and intermittent nursing care but who are capable
of self-preservation and are not bedfast, including those
individuals who qualify for and are receiving services
coordinated by a licensed hospice. Such care and treatment
requires a living environment for such persons which, to the
extent practicable, will approximate a normal home environment.
To this end, the guiding principle for administration of the laws of the state is that such persons shall be encouraged and
assisted in securing necessary care and treatment in
noninstitutional surroundings. In recognition that for many such
persons effective care and treatment can only be secured from
proprietary, voluntary and governmental residential board and
care homes it is the policy of this state to encourage, promote
and require the maintenance of residential board and care homes
so as to ensure protection of the rights and dignity of those
using the services of such residential board and care homes.
The provisions of this article are hereby declared to be
remedial and shall be liberally construed to effectuate its
purposes and intents.
§16-5H-2. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) "Deficiency" means a statement of the rule and the fact
that compliance has not been established and the reasons
therefor;
(b) "Department" means the state department of health and
human resources;
(c) "Director" means the secretary of the department of
health and human resources or his or her designee;
(d) "Division" means the division of health of the state
department of health and human resources;
(e) "Limited and intermittent nursing care" means direct
hands on nursing care of an individual who needs no more than two
hours of nursing care per day for a period of time no longer than ninety consecutive days per episode which may only be provided
when the need for such care meets these factors: (1) The
resident requests to remain in the residential board and care
home; (2) the resident is advised of the availability of other
specialized health care facilities to treat his or her condition;
and (3) the need for such care is the result of a medical
pathology or a result of the normal aging process. Limited and
intermittent nursing care may only be provided by or under the
supervision of a registered professional nurse and in accordance
with rules promulgated by the secretary;
(f) "Nursing care" means those procedures commonly employed
in providing for the physical, emotional and rehabilitational
needs of the ill or otherwise incapacitated which require
technical skills and knowledge beyond that which the untrained
person possesses, including, but not limited to, such procedures
as: Irrigations, catheterization, special procedures
contributing to rehabilitation and administration of medication
by any method which involves a level of complexity and skill in
administration not possessed by the untrained person;
(g) "Person" means an individual and every form of
organization, whether incorporated or unincorporated, including
any partnership, corporation, trust, association or political
subdivision of the state;
(h) "Personal assistance" means personal services,
including, but not limited to, the following: Help in walking,
bathing, dressing, feeding or getting in or out of bed, or
supervision required because of the age or mental impairment of the resident;
(i) "Resident" means an individual living in a residential
board and care home for the purpose of receiving personal
assistance or limited and intermittent nursing services from the
home;
(j) "Residential board and care home" means any residence or
place or any part or unit thereof, however named, in this state
which is advertised, offered, maintained or operated by the
ownership or management, whether for a consideration or not, for
the express or implied purpose of providing accommodations,
personal assistance and supervision, for a period of more than
twenty-four hours, to four to ten persons who are dependent upon
the services of others by reason of physical or mental impairment
or who may require limited and intermittent nursing care but who
are capable of self-preservation and are not bedfast, including
those individuals who qualify for and are receiving services
coordinated by a licensed hospice: Provided, That services
utilizing equipment which requires auxiliary electrical power in
the event of a power failure may not be used unless the
residential board and care home has a backup power generator:
Provided, however, That the care or treatment in a household,
whether for compensation or not, of any person related by blood
or marriage, within the degree of consanguinity of second cousin
to the head of the household, or his or her spouse, may not be
deemed to constitute a residential board and care home within the
meaning of this article. Nothing contained in this article
applies to hospitals, as defined under section one, article five-b of this chapter; or state institutions, as defined under
section three, article one, chapter twenty-five of this code or
section six, article one, chapter twenty-seven of this code; or
residential board and care homes operated by the federal
government or the state; or institutions operated for the
treatment and care of alcoholic patients; or offices of
physicians; or hotels, boarding homes or other similar places
that furnish to their guests only room and board; or to homes or
asylums operated by fraternal orders pursuant to article three,
chapter thirty-five of this code;
(k) "Secretary" means the secretary of the state department
of health and human resources or his or her designee;
(l) "Self-preservation" means that a person is, at least,
capable of removing his or her physical self from situations
involving imminent danger, such as fire; and
(m) "Substantial compliance" means a level of compliance
with the rules such that identified deficiencies pose no greater
risk to resident health or safety than the potential for causing
minimal harm.
The secretary may define in rules any term used herein which
is not expressly defined.
§16-5H-3. Powers, duties and rights of director.
In the administration of this article, the director shall
have the following powers, duties and rights:
(a) To enforce rules and standards for residential board and
care homes which are adopted, promulgated, amended or modified by
the secretary;
(b) To exercise as sole authority all powers relating to the
issuance, suspension and revocation of licenses of residential
board and care homes;
(c) To enforce rules adopted, promulgated, amended or
modified by the secretary governing the qualification of
applicants for residential board and care home licenses,
including, but not limited to, educational requirements,
financial requirements, personal and ethical requirements;
(d) To receive and disburse federal funds and to take
whatever action not contrary to law as may be proper and
necessary to comply with the requirements and conditions for the
receipt of federal funds;
(e) To receive and disburse for authorized purposes any
moneys appropriated for the division by the Legislature;
(f) To receive and disburse for purposes authorized by this
article, any funds that may come to the division by gift, grant,
donation, bequest or devise, according to the terms thereof, as
well as funds derived from the division's operation, or
otherwise;
(g) To make contracts, and to execute all instruments
necessary or convenient in carrying out the director's functions
and duties; and all contracts, agreements and instruments shall
be executed by the director;
(h) To appoint officers, agents, employees and other
personnel and fix their compensation;
(i) To offer and sponsor educational and training programs
for residential board and care homes' administrative, management and operational personnel;
(j) To undertake survey, research and planning projects and
programs relating to administration and operation of residential
board and care homes and to the health, care, treatment and
service in general of residents of such homes;
(k) To assess civil penalties for violations of residential
board and care home standards, in accordance with section ten of
this article;
(l) To inspect any residential board and care home and any
records maintained therein, subject to the provisions of section
ten of this article;
(m) To establish and implement procedures, including
informal conferences, investigations and hearings, subject to
applicable provisions of article three, chapter twenty-nine-a of
this code, and to enforce compliance with the provisions of this
article and with rules issued hereunder, by the secretary;
(n) To subpoena witnesses and documents, administer oaths
and affirmations, and to examine witnesses under oath for the
conduct of any investigation or hearing. Upon failure of a
person without lawful excuse to obey a subpoena to give testimony
and upon reasonable notice to all persons affected thereby, the
director may apply to the circuit court of the county in which
the hearing is to be held or to the circuit court of Kanawha
County for an order compelling compliance;
(o) To make complaint or cause proceedings to be instituted
against any person or persons for the violation of the provisions
of this article or of rules issued hereunder, by the secretary. Such action may be taken by the director without the sanction of
the prosecuting attorney of the county in which proceedings are
instituted, if the officer fails or refuses to discharge his or
her duty. The circuit court of Kanawha County or the circuit
court of the county in which the conduct has occurred shall have
jurisdiction in all civil enforcement actions brought under this
article and may order equitable relief without bond. In no such
case may the director or any person acting under the director's
direction be required to give security for costs;
(p) To delegate authority to the director's employees and
agents to perform all functions of the director except the making
of final decisions in adjudications; and
(q) To submit a report to the governor, the Legislature and
the public, on or before the first day of December, one thousand
nine hundred ninety-seven, and annually thereafter. The report
shall describe the residential board and care home licensing and
investigatory activities of the division during the year, and the
nature and status of other activities of the division, and may
include comment on the acts, policies, practices or procedures of
any public or private agency that affect the rights, health or
welfare of residents of residential board and care homes. The
annual report shall include a list of all residential board and
care homes in the state and such of the following information as
the director determines to apply: Whether the homes are
proprietary or nonproprietary, the classification of each home;
the name of the owner or owners; the total number of beds; the
number of private and semiprivate rooms; the costs per diem for private residents; the number of full-time employees and their
professions; recreational programs; services and programs
available as well as the costs thereof, and whether or not those
residential board and care homes listed accept medicare and
medicaid residents. The report shall also contain the division's
recommendations as to changes in law or policy which it deems
necessary or appropriate for the protection of the rights, health
or welfare of residents of residential board and care homes in
the state.
§16-5H-4. Administrative and inspection staff.
The director may, at such time or times as he or she may
deem necessary, employ such administrative employees, inspectors,
or other persons as may be necessary to properly carry out the
provisions of this article. All employees of the division shall
be members of the state civil service system. Such inspectors
and other employees as may be duly designated by the director
shall act as the director's representatives and, under the
direction of the director, shall enforce the provisions of this
article and all duly promulgated rules of the secretary and, in
the discharge of official duties, shall have the right of entry
into any place maintained as a residential board and care home.
§16-5H-5. Rules; minimum standards for residential board and
care homes.
(a) All rules shall be approved by the secretary and
promulgated in the manner provided by the provisions of article
three, chapter twenty-nine-a of this code. The secretary shall
adopt, amend or repeal such rules as may be necessary or proper to carry out the purposes and intent of this article and to
enable the director to exercise the powers and perform the duties
conferred upon the director by this article.
(b) The secretary shall promulgate rules establishing
minimum standards of operation of residential board and care
homes including, but not limited to, the following:
(1) Administrative policies, including: (A) An affirmative
statement of the right of access to residential board and care
homes by members of recognized community organizations and
community legal services programs whose purposes include
rendering assistance without charge to residents, consistent with
the right of residents to privacy; and (B) a statement of the
rights and responsibilities of residents;
(2) Minimum numbers and qualifications of personnel,
including management, medical and nursing, aides, orderlies and
support personnel, according to the size and classification of
the residential board and care home;
(3) Safety requirements;
(4) Sanitation requirements;
(5) Protective and personal services to be provided;
(6) Dietary services to be provided;
(7) Maintenance of health records;
(8) Social and recreational activities to be made available;
(9) Physical facilities;
(10) Requirements related to limited and intermittent
nursing care; and
(11) Such other categories as the secretary determines to be appropriate to ensure resident's health, safety and welfare.
(c) The secretary shall include in rules detailed standards
for each of the categories of standards established pursuant to
subsections (b) and (d) of this section, and shall classify such
standards as follows: Class I standards are standards the
violation of which, the secretary determines, would present
either an imminent danger to the health, safety or welfare of any
resident or a substantial probability that death or serious
physical harm would result; Class II standards are standards
which the secretary determines have a direct or immediate
relationship to the health, safety or welfare of any resident,
but which do not create imminent danger; Class III standards are
standards which the secretary determines have an indirect or a
potential impact on the health, safety or welfare of any
resident.
(d) A residential board and care home shall attain
substantial compliance with standards established pursuant to
section five of this article, and such other requirements for a
license as may be established by rule under this article.
§16-5H-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 residential board and care home within this state
unless and until he or she 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
residential board and care home, 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 applicant
is in compliance with the standards for residential board and
care homes as established by this article and the rules lawfully
promulgated by the secretary 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: (A) Of each
person who, as a stockholder or otherwise, has a proprietary
interest of ten percent or more in the applicant; (B) of each
officer and director of a corporate applicant; (C) of each
trustee and beneficiary of an applicant which is a trust; and (D)
where a corporation has a proprietary interest of twenty-five
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
residential board and care home or proposed residential board and
care home, if he or she is a different person from the applicant,
and in such case, the name and address: (A) Of each person who,
as a stockholder or otherwise, has a proprietary interest of ten percent or more in such owner; (B) of each officer and director
of a corporate applicant; (C) of each trustee and beneficiary of
such owner if he or she is a trust; and (D) where a corporation
has a proprietary interest of twenty-five 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
residential board and care home or the premises of the proposed
residential board and care home, a signed copy of the lease and
any assignment thereof;
(5) The name and address of the residential board and care
home or the premises of the proposed residential board and care
home;
(6) The proposed bed quota of the residential board and care
home and the proposed bed quota of each unit thereof;
(7) (A) An organizational plan for the residential board and
care home indicating the number of persons employed or to be
employed, the positions and duties of all employees; (B) the name
and address of the individual who is to serve as administrator;
and (C) such evidence of compliance with applicable laws and
rules governing zoning, buildings, safety, fire prevention and
sanitation as the director may require; and
(8) Such additional information as the director may require.
(b) Upon receipt and review of an application for license
made pursuant to subsection (a) of this section, and inspection
of the applicant residential board and care home pursuant to
section ten of this article, the director shall issue a license if he or she finds:
(1) That an individual applicant, and any partner, trustee,
officer, director and controlling person of an applicant which is
not an individual, is a person responsible and suitable to
operate or to direct or participate in the operation of a
residential board and care home 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 residential board and care home be under the
supervision of an administrator who is qualified by training and
experience; or
(3) That the residential board and care home is in
substantial compliance with standards established pursuant to
section five of this article, and such other requirements for a
license as the secretary may establish by rule under this
article.
The director may deny an initial or renewal license if the
information provided in an application or report is known by the
applicant to be false or the applicant fails to report required
information.
Any license granted by the director shall state the maximum
bed capacity for which it is granted, the date the license was
issued, and the expiration date. Such licenses shall be issued
for a period not to exceed one year for 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 division of health in
conformance with the provisions of this article and the rules
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 is not transferable or assignable: Provided, however, That
in the case of the transfer of ownership of a residential board
and care home 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 displayed in a conspicuous place in the
residential board and care home for which it is issued so as to
be accessible to and in plain view of all residents and visitors
of the residential board and care home.
(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
rules promulgated by the secretary hereunder. The application
shall be accompanied by the information required in subdivisions
(1),(2) and (3) of this subsection.
(1) A balance sheet of the residential board and care home
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 residential board and
care home 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.
(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 or her discretion issue a provisional
license, provided that care given in the residential board and
care home is adequate for resident needs and the residential
board and care home 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, may not be renewed, and may
not be issued to any residential board and care home 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 sixty- five dollars for an original residential board and care home
license shall be paid at the time application is made for such
license. The average cost of all direct costs for the initial
licensure inspections of all such homes for the preceding ten
facilities 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 four 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 licensure fees 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 promulgated by the secretary.
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.
§16-5H-7. Cost disclosure; surety for residents' funds.
(a) Each residential board and care home shall disclose in
writing to all prospective residents a complete and accurate list
of all costs which may be incurred by them. Residents are not
liable for any cost not so disclosed.
(b) If the residential board and care home handles any money
for residents within the residential board and care home, the
licensee or his or her authorized representative shall give a
bond in an amount consistent with this subsection and with such
surety as the director shall approve. Such bond shall be upon
condition that the licensee shall hold separately and in trust
all residents' funds deposited with the licensee, shall
administer the funds on behalf of the resident in the manner directed by the depositor, shall render a true and complete
account to the depositor and the director when requested, and at
least quarterly to the resident, and upon termination of the
deposit, shall account for all funds received, expended, and held
on hand. The licensee shall file a bond in a sum to be fixed by
the director based upon the magnitude of the operations of the
applicant, but which sum may not be less than two thousand five
hundred dollars.
(c) Every person injured as a result of any improper or
unlawful handling of the money of a resident of a residential
board and care home may bring an action in a proper court on the
bond required to be posted by the licensee pursuant to this
subsection for the amount of damage suffered as a result thereof
to the extent covered by the bond. Whenever the director
determines that the amount of any bond which is filed pursuant to
this subsection is insufficient to adequately protect the money
of residents which is being handled, or whenever the amount of
any such bond is impaired by any recovery against the bond, the
director may require the licensee to file an additional bond in
such amount as necessary to adequately protect the money of
residents being handled.
(d) The provisions of this subsection do not apply if the
licensee handles less than twenty-five dollars per resident and
less than five hundred dollars for all residents in any month.
§16-5H-8. Investigation of complaints.
The secretary shall establish by rule procedures for prompt
investigation of all complaints of alleged violations by residential board and care homes of applicable requirements of
state law or rules, except for such complaints that the director
determines are willfully intended to harass a licensee or are
without any reasonable basis. Such procedures shall include
provisions for ensuring the confidentiality of the complainant
and of any other person so named in the complaint, and for
promptly informing the complainant and the residential board and
care home involved of the results of the investigation.
If, after its investigation, the director determines that
the complaint has merit, the director shall take appropriate
disciplinary action and shall advise any injured party of the
possibility of a civil remedy under this article.
No residential board and care home may discharge or in any
manner discriminate against any resident or employee for the
reason that such resident or employee has filed a complaint or
participated in any proceeding specified in this article.
Violation of this prohibition by any residential board and care
home constitutes ground for the suspension or revocation of the
license of the residential board and care home as provided in
section eleven of this article. Any type of discriminatory
treatment of a resident by whom, or upon whose behalf, a
complaint has been submitted to the director, or any proceeding
instituted under this article, within one hundred twenty days of
the filing of the complaint or the institution of such action,
shall raise a rebuttable presumption that such action was taken
by the residential board and care home in retaliation for such
complaint or action.
§16-5H-9. Inspections.
The director and any duly designated employee or agent
thereof shall have the right to enter upon and into the premises
of any residential board and care home for which a license has
been issued, for which an application for license has been filed
with the director, or which the director has reason to believe is
being operated or maintained as a residential board and care home
without a license. If such entry is refused by the owner or
person in charge of any such residential board and care home, the
director shall apply to the circuit court of the county in which
the residential board and care home is located or the circuit
court of Kanawha County for an order authorizing inspection, and
such court shall issue an appropriate order if it finds good
cause.
The director, by the director's authorized employees or
agents, shall conduct at least one inspection prior to issuance
of a license pursuant to section six of this article, and shall
conduct periodic unannounced inspections thereafter, to determine
compliance by the residential board and care home with applicable
statutes and rules promulgated thereunder. All residential board
and care homes shall comply with rules of the state fire
commission. The state fire marshal, by his or her employees or
authorized agents, shall make all fire, safety and like
inspections. The director may provide for such other inspections
as the director may deem necessary to carry out the intent and
purpose of this article. If after investigating a complaint, the
director determines that the complaint is substantiated and that an immediate and serious threat to a consumer's health or safety
exists, the director may invoke any remedies available pursuant
to section eleven of this article. Any residential board and
care home aggrieved by a determination or assessment made
pursuant to this section shall have the right to an
administrative appeal as set forth in section twelve of this
article.
§16-5H-10. Reports of inspections; plans of correction;
assessment of penalties and use of funds derived
therefrom; hearings.
(a) Reports of all inspections made pursuant to section nine
of this article shall be in writing and filed with the director,
and shall list all deficiencies in the residential board and care
home's compliance with the provisions of this article and the
rules adopted by the secretary hereunder. The director shall
send a copy of such report to the residential board and care home
by certified mail, return receipt requested, and shall specify a
time within which the residential board and care home shall
submit a plan for correction of such deficiencies, which plan
shall be approved, rejected or modified by the director. The
surveyors shall allow audio taping of the exit conference for
both licensure and certification inspections with all costs
directly associated with such taping to be paid by the
residential board and care home provided that an original tape is
provided to surveyors at the end of taping.
(b) Upon a residential board and care home's failure to
submit a plan of correction which is approved by the director, or to correct any deficiency within the time specified in an
approved plan of correction, the director may assess civil
penalties as hereinafter provided or may initiate any other legal
or disciplinary action as provided by this article.
(c) Nothing in this section may be construed to prohibit the
director from enforcing a rule, administratively or in court,
without first affording formal opportunity to make correction
under this section, where, in the opinion of the director, the
violation of such rule jeopardizes the health or safety of
residents or where the violation of such rule is the second or
subsequent such violation occurring during a period of twelve
full months.
(d) Civil penalties assessed against residential board and
care homes shall be classified according to the nature of the
violation as defined in subsection (c), section five of this
article and rules promulgated thereunder by the secretary, as
follows: For each violation of a Class I standard, a civil
penalty of not less than fifty nor more than five hundred dollars
shall be imposed; for each violation of a Class II standard, a
civil penalty of not less than twenty-five nor more than fifty
dollars shall be imposed; for each violation of a Class III
standard, a civil penalty of not less than ten nor more than
twenty-five dollars shall be imposed. Each day a violation
continues, after the date of citation, shall constitute a
separate violation. The date of citation is the date the
facility receives the written statement of deficiencies.
(e) The director shall assess a civil penalty not to exceed two thousand dollars against any individual who notifies, or
causes to be notified, a residential board and care home of the
time or date on which an inspection is scheduled to be conducted
under this article.
(f) If the director assesses a penalty under this section,
the director shall cause delivery of notice of such penalty by
personal service or by certified mail. Said notice shall state
the amount of the penalty, the action or circumstance for which
the penalty is assessed, the requirement that the action or
circumstance violates, and the basis upon which the director
assessed the penalty and selected the amount of the penalty.
(g) The director shall, in a civil judicial proceeding,
recover any unpaid assessment which has not been contested under
section twelve of this article within thirty days of receipt of
notice of such assessment, or which has been affirmed under the
provisions of that section and not appealed within thirty days of
receipt of the director's final order, or which has been affirmed
on judicial review, as provided in section thirteen of this
article. All money collected by assessments of civil penalties
or interest shall be paid into a special resident benefit account
and shall be applied by the director only for the protection of
the health or property of residents of residential board and care
homes operated within the state that the director finds to be
deficient, including payment for the costs of relocation of
residents to other facilities, operation of a residential board
and care home pending correction of deficiencies or closure, and
reimbursement of residents for personal funds lost.
(h) The opportunity for a hearing on an action taken under
this section shall be as provided in section twelve of this
article. In addition to any other rights of appeal conferred
upon a residential board and care home pursuant to this section,
a residential board and care home shall have the right to request
a hearing and seek judicial review pursuant to sections twelve
and thirteen of this article to contest the citing by the
director of a deficiency on an inspection report, irrespective of
whether the deficiency results in the imposition of a civil
penalty.
§16-5H-11. License limitation, suspension, revocation; ban on
admissions; continuation of disciplinary
proceedings; closure, transfer of residents,
appointment of temporary management; assessment of interest; collection of assessments; hearings.
(a) The director shall by order, impose a ban on the
admission of residents or reduce the bed quota of the residential
board and care home, or any combination thereof, where he or she
finds upon inspection of the residential board and care home that
the licensee is not providing adequate care under the residential
board and care home's existing quota, and that, reduction in
quota or imposition of a ban on admissions, or any combination
thereof, would place the licensee in a position to render
adequate care. Any notice to a licensee of reduction in quota or
ban on admissions shall include the terms of such order, the
reasons therefor, and the date set for compliance.
(b) The director may suspend or revoke a license issued under this article if he or she finds upon inspection that there
has been a substantial failure to comply with the provisions of
this article or the standards or rules promulgated pursuant
hereto.
(c) Whenever a license is limited, suspended or revoked
pursuant to this section, the director shall file an
administrative complaint stating facts constituting a ground or
grounds for such limitation, suspension or revocation. Upon the
filing of the administrative complaint, the director shall notify
the licensee in writing of the filing of the administrative
complaint, enclosing a copy of the administrative complaint, and
shall advise the licensee of the availability of a hearing
pursuant to section twelve of this article. Such notice and copy
of the complaint shall be served on such licensee by certified
mail, return receipt requested.
(d) The suspension, expiration, forfeiture or cancellation
by operation of law or order of the director of a license issued
by the director, or the withdrawal of an application for a
license after it has been filed with the director, may not
deprive the director of the director's authority to institute or
continue a disciplinary proceeding, or a proceeding for the
denial of a license application, against the licensee or
applicant upon any ground provided by law or to enter an order
denying the license application or suspending or revoking the
license or otherwise taking disciplinary action on any such
ground.
(e) In addition to other remedies provided in this article, upon petition from the director, the circuit court of the county
in which the conduct has occurred or is occurring, or the circuit
court of Kanawha County, may determine that a residential board
and care home's deficiencies under this article constitute an
emergency immediately jeopardizing the health, safety, welfare,
or rights of its residents, and issue an order to:
(1) Close the residential board and care home;
(2) Transfer residents in the residential board and care
home to other facilities; or
(3) Appoint temporary management to oversee the operation of
the residential board and care home and to assure the health,
safety, welfare and rights of the residential board and care
home's residents, where there is a need for temporary management
while:
(A) There is an orderly closure of the residential board and
care home; or
(B) Improvements are made in order to bring the residential
board and care home into compliance with all the applicable
requirements of this article.
If the director petitions a circuit court for the closure of
a residential board and care home, the transfer of residents, or
the appointment of temporary management, the circuit court shall
hold a hearing no later than seven days thereafter, at which time
the director and the licensee or operator of the residential
board and care home may participate and present evidence.
A circuit court may divest the licensee or operator of
possession and control of a residential board and care home in favor of temporary management. The temporary management shall be
responsible to the court and shall have such powers and duties as
the court may grant to direct all acts necessary or appropriate
to conserve the property and promote the health, safety, welfare
and rights of the residents of the residential board and care
home, including, but not limited to, the replacement of
management and staff, the hiring of consultants, the making of
any necessary expenditures to close the residential board and
care home or to repair or improve the residential board and care
home so as to return it to compliance with applicable
requirements, and the power to receive, conserve and expend
funds, including payments on behalf of the licensee or operator
of the residential board and care home. Priority shall be given
to expenditures for current direct resident care or the transfer
of residents.
The person charged with temporary management shall be an
officer of the court, shall be paid by the residential board and
care home when resources are available, is not liable for
conditions at the residential board and care home which existed
or originated prior to his or her appointment, and is not
personally liable, except for his or her own gross negligence and
intentional acts which result in injuries to persons or damage to
property at the residential board and care home during his or her
temporary management.
No person may impede the operation of a temporary
management. There shall be an automatic stay for a ninety-day
period subsequent to the establishment of a temporary management of any action that would interfere with the functioning of the
residential board and care home, including, but not limited to,
cancellation of insurance policies, termination of utility
services, attachments to working capital accounts, foreclosures,
evictions and repossessions of equipment used in the residential
board and care home.
A temporary management established for the purpose of making
improvements in order to bring a residential board and care home
into compliance with applicable requirements may not be
terminated until the court has determined that the residential
board and care home has the management capability to ensure
continued compliance with all applicable requirements, except if
the court has not made such determination within six months of
the establishment of the temporary management, the temporary
management terminates by operation of law at that time, and the
residential board and care home shall be closed. After the
termination of the temporary management, the person who was
responsible for the temporary management shall make an accounting
to the court, and after deducting from receipts the costs of the
temporary management, expenditures and civil penalties and
interest no longer subject to appeal, in that order, any excess
shall be paid to the licensee or operator of the residential
board and care home.
(f) The assessments for penalties and for costs of actions
taken under this article shall have interest assessed at five
percent per annum beginning thirty days after receipt of notice
of such assessment or thirty days after receipt of the director's final order following a hearing, whichever is later. All such
assessments against a residential board and care home that are
unpaid shall be added to the residential board and care home's
licensure fee and may be filed as a lien against the property of
the licensee or operator of the residential board and care home.
Funds received from such assessments shall be deposited as funds
received, as provided, in section ten of this article.
(g) The secretary shall have the power to promulgate
emergency rules that expand the power of the director in excess
of that provided in this article to the extent required to comply
with federal requirements, but any such rules shall expand the
power of the director to the minimum extent required by federal
requirements. Such rules are subject to the provisions of
article three, chapter twenty-nine-a of this code.
(h) The opportunity for a hearing on an action by the
director taken under this section shall be as provided in section
twelve of this article.
§16-5H-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, upon timely written request, have the opportunity for a
hearing by the director at which he or she 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 such hearing. Such licensee or applicant may also request an informal meeting with
the director before such hearing.
Following such hearing the director shall make and enter a
written order either dismissing the complaint or taking such
action as is authorized in this article. The written order of
the director shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code, and a copy of such order and
accompanying findings and conclusions shall be served upon the
licensee and his or her attorney of record, if any, by certified
mail, return receipt requested. If the director suspends a
residential board and care home's license, it shall also specify
the conditions giving rise to such suspension, to be corrected by
the licensee during the period of suspension in order to entitle
the licensee to reinstatement of the license. If the director
revokes a license, the director may stay the effective date of
revocation by not more than ninety days upon a showing that such
delay is necessary to assure appropriate placement of residents.
The order of the director shall be final unless vacated or
modified upon judicial review thereof in accordance with the
provisions of section thirteen of this article.
(b) In addition to all other powers granted by this chapter,
the director may hold the case under advisement and make a
recommendation as to requirements to be met by the licensee in
order to avoid either suspension or revocation. In such a case,
the director shall enter an order accordingly and so notify the
licensee and his or her attorney of record, if any, by certified mail, return receipt requested. If the licensee meets the
requirements of such order, the director shall enter an order
showing satisfactory compliance and dismissing the complaint and
shall so notify the licensee and the licensee's attorney of
record, if any, by certified mail, return receipt requested.
§16-5H-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.
§16-5H-14. Legal counsel and services for the director.
(a) Legal counsel and services for the director in all
administrative hearings and all proceedings in any circuit court
and the supreme court of appeals shall be provided by the
attorney general, his or her assistants or an attorney employed
by the director, in proceedings in any circuit court by the
prosecuting attorney of the county as well, all without
additional compensation.
(b) The governor may appoint counsel for the director, who
shall perform such legal services in representing the interests of residents in residential board and care homes in matters under
the jurisdiction of the director as the governor shall direct.
It shall be the duty of such counsel to appear for the residents
in all cases where they are not represented by counsel. The
compensation of such counsel shall be fixed by the governor.
§16-5H-15. Unlawful acts; penalties; injunctions; private right
of action.
(a) Whoever advertises, announces, establishes or maintains,
or is engaged in establishing or maintaining a residential board
and care home without a license granted under section six of this
article, or who prevents, interferes with or impedes in any way
the lawful enforcement of this article shall be guilty of a
misdemeanor and, upon conviction thereof, shall be punished for
the first offense by a fine of not more than one hundred dollars,
or by imprisonment in jail for a period of not more than ninety
days, or by both such fine and imprisonment, at the discretion of
the court. For each subsequent offense, the fine may be
increased to not more than two hundred fifty dollars, with
imprisonment in jail for a period of not more than ninety days,
or both such fine and imprisonment at the discretion of the
court. Each day of a continuing violation after conviction shall
be considered a separate offense.
(b) The director may in his or her discretion bring an
action to enforce compliance with this article or any rule, or
order hereunder, whenever it shall appear to the director that
any person has engaged in, or is engaging in, an act or practice
in violation of this article or any rule, or order hereunder, or whenever it shall appear to the director that any person has
aided, abetted or caused, or is aiding, abetting or causing such
an act or practice. Upon application by the director, the
circuit court of the county in which the conduct has occurred or
is occurring, or if emergency circumstances occur, the circuit
court of Kanawha County, shall have jurisdiction to grant without
bond a permanent or temporary injunction, decree or restraining
order.
Whenever the director shall have refused to grant or renew
a license, or shall have revoked a license required by law to
operate or conduct a residential board and care home, or shall
have ordered a person to refrain from conduct violating the rules
of the secretary, and the person deeming himself or herself
aggrieved by such refusal or revocation or order shall have
appealed the action of the director, the court may, during
pendency of such appeal, issue a restraining order or injunction
upon proof that the operation of the residential board and care
home or its failure to comply with the order of the director
adversely affects the well-being or safety of the residents of
the residential board and care home. Should a person who is
refused a license or the renewal of a license to operate or
conduct a residential board and care home or whose license to
operate is revoked or who has been ordered to refrain from
conduct or activity which violates the rules of the secretary,
fail to appeal or should such appeal be decided favorably to the
director, then the court shall issue a permanent injunction upon
proof that the person is operating or conducting a residential board and care home without a license as required by law, or has
continued to violate the rules of the secretary.
(c) Any residential board and care home that deprives a
resident of any right or benefit created or established for the
well-being of the resident by the terms of any contract, by any
state statute or rule, or by any applicable federal statute or
regulation, shall be liable to the resident for injuries suffered
as a result of such deprivation. Upon a finding that a resident
has been deprived of such a right or benefit, and that the
resident has been injured as a result of such deprivation, and
unless there is a finding that the residential board and care
home exercised all care reasonably necessary to prevent and limit
the deprivation and injury to the resident, compensatory damages
shall be assessed in an amount sufficient to compensate such
resident for such injury. In addition, where the deprivation of
any such right or benefit is found to have been willful or in
reckless disregard of the lawful rights of the resident, punitive
damages may be assessed. A resident may also maintain an action
pursuant to this section for any other type of relief, including
injunctive and declaratory relief, permitted by law. Exhaustion
of any available administrative remedies is not required prior to
commencement of suit hereunder.
The amount of damages recovered by a resident, in an action
brought pursuant to this section, shall be exempt for purposes of
determining initial or continuing eligibility for medical
assistance under article four, chapter nine of this code, and
shall neither be taken into consideration nor required to be applied toward the payment or part payment of the cost of medical
care or services available under said article.
Any waiver by a resident or his or her legal representative
of the right to commence an action under this section, whether
oral or in writing, shall be null and void as contrary to public
policy.
(d) The penalties and remedies provided in this section are
cumulative and shall be in addition to all other penalties and
remedies provided by law.
§16-5H-16. Availability of reports and records.
The director shall make available for public inspection and
at a nominal cost provide copies of all inspections and other
reports of residential board and care homes filed with or issued
by the director. Nothing contained in this section may be
construed or deemed to allow the public disclosure of
confidential medical, social, personal or financial records of
any resident. The secretary shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code as may be necessary to give
effect to the provisions of this section and to preserve the
confidentiality of medical, social, personal or financial records
of residents.
§16-5H-17. Licenses and rules in force.
All licenses for residential board and care homes which are
in force on the first day of July, one thousand nine hundred
ninety-seven, shall continue in full force and effect during the
period for which issued unless sooner revoked as provided in this article.
All rules in effect on the first day of July, one thousand
nine hundred ninety-seven, which were adopted by the secretary
relating to licensing residential board and care homes, shall
remain in full force and effect until altered, amended or
repealed by the secretary.
§16-5H-18. Separate accounts for residents' personal funds;
consent for use; records; penalties.
(a) Each residential board and care home subject to the
provisions of this article shall hold in a separate account and
in trust each resident's personal funds deposited with the
residential board and care home.
(b) No person may use or cause to be used for any purpose
the personal funds of any resident admitted to any such
residential board and care home unless consent for the use
thereof has been obtained from the resident or from a committee
or guardian or relative.
(c) Each residential board and care home shall maintain a
true and complete record of all receipts for any disbursements
from the personal funds account of each resident in the
residential board and care home, including the purpose and payee
of each disbursement, and shall render a true account of such
record to the resident or his or her representative upon demand
and upon termination of the resident's stay in the residential
board and care home.
(d) Any person or corporation who violates any subsection of
this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or
imprisoned in jail not more than one year, or both fined and
imprisoned.
NOTE: The purpose of this bill is to change the licensure
for hospitals, nursing homes, personal care homes and residential
board and care homes by providing separate articles for each type
of home. The bill eliminates any nursing home penalties tied to
former federal certification requirements, eliminates the
alphabetical rating system for nursing and personal care homes,
increases licensure fees for nursing homes, explicitly adds a ban
on admissions as a method to deal with homes which are not
providing adequate care, allows attorneys' costs to be assessed
against violators, and requires emergency rules for nursing homes
to be implemented on March 15, 1996, or the effective date of
this bill, whichever occurs last. This bill also continues the
requirement for the registration of legally unlicensed health
care homes, provides for inspection of the homes, and provides a
legally enforceable right of entry for authorized inspectors,
provides for a registry of service providers, and provides for
the assessment of civil and criminal penalties for violations of
the article.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language that would be added.
§§16-5D and 16-5E-1a are new; therefore, strike-throughs and
underscoring have been omitted.
§16-5H has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
GOVERNMENT ORGANIZATION COMMITTEE AMENDMENT
On page three, section one, line sixteen, following the
words "utilization of", by striking out the words "adequate public
and private".
On page thirty-three, section nine, line fifteen, following
the word "thereunder" and the period, by inserting the words "All
facilities shall comply with regulations of the state fire
commission. The state fire marshal, by his employees or
authorized agents, shall make all fire, safety and like
inspections."
And,
On page one hundred ten, section two, line sixteen,
following the words "four to" by striking out the word "ten" and
inserting in lieu thereof the word "sixteen".