H. B. 4699
(By Delegates Leach (By Request), Douglas (By Request), Compton
(By Request), Varner (By Request) and Capito (By Request))
[Introduced February 25, 2000; referred to the
Committee on Government Organization then Finance.]
A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twenty-nine-f,
relating to ensuring appropriate health services to persons
eligible for such services; setting forth certain legislative
findings and listing the intent of the Legislature; setting
forth the responsibilities and obligations of the bureau for
behavioral health and health facilities' office of behavioral
health services and the bureau for medical services or their
successor agencies and service providers; ensuring freedom of
choice; and establishing an expedited hearing procedure.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article twenty-nine-f, to read as follows:
ARTICLE 29F. BEHAVIORAL HEALTH SERVICE ASSURANCE PROCEDURES.
§16-29F-1. Legislative intent.
The Legislature hereby finds that the department of health and
human resources, the bureau for behavioral health and health
facilities' office of behavioral health services and the bureau for
medical services, has failed to provide the citizens of this state
who are eligible for behavioral health care services with an
appropriate, timely and effective procedure to voice their
concerns, to air grievances or to appeal decisions of the office
with which they disagree.
The Legislature also finds that the office of behavioral
health services and the bureau for medical services has failed to
ensure that its contracted service providers maintain the level of
services required to meet the needs of eligible service recipients.
The Legislature further finds that the office of behavioral health
services and the bureau for medical services has failed to ensure
that service providers offer reasonable opportunity for eligible
service recipients and their families to: Challenge decisions of
service providers; hold service providers responsible for the
provision of needed services; and obtain restitution when services
were not provided as required under the service contract.
It is therefore, the intent of the Legislature in enacting
this article to ensure that: Services authorized by the office of
behavioral health services and the bureau for medical services or
their successor agencies are delivered; services needed by eligible
recipients are made widely available by providing fair and timely
payment to encourage improved services; service providers are held
accountable to the eligible service recipients and their families;
and grievance procedures of the office of behavioral health
services and the behavioral health services or their successor
agencies and service providers are accessible and understandable.
§16-29F-2. Responsibilities and obligations of the office of
behavioral health services and the bureau for
medical services or their successor agencies.
It is the responsibility of the office of behavioral health
services or its successor, to plan, encourage and develop high
quality community based programs for eligible recipients of
services by contracting with service providers. The office of
behavioral health or its successor, shall ensure that service
providers have the necessary technical support, trained staff and
administrative structure to provide the services set out in any
contract. The office of behavioral health services or its
successor, shall ensure that all service providers provide and
follow understandable and easily implemented grievance procedures.
When requested to do so, the office of behavioral health services
or its successor, shall assist any eligible recipient of services
or their families to obtain the services set out in the recipient's individualized program plan including providing personnel to assist
such recipient in filing and pursuing grievances with service
providers.
§16-29F-3. Responsibilities and obligations of service providers.
Any person, organization or agency providing services to
eligible recipients of services provided through contracts with the
office of behavioral health services or its successor, shall do so
efficiently, effectively and in accordance with the eligible
recipients individualized program plan. Except for documented
emergencies, service providers shall be fully staffed with trained
and competent aides and professionals when providing services under
a contract with the office of behavioral health services or its
successor. Any staff shortages or programmatic disruptions
occurring at any facility or program in which an eligible recipient
of services is participating as a part of that person's
individualized program plan shall be resolved by the service
provider within twenty-four hours. If the service provider fails
or refuses to do so, the office of behavioral health services or
its successor, shall assess a fine of not less than five hundred
dollars against such service provider for each day the service
provider fails to correct the staff shortage or program disruption.
Within thirty-six hours of notice that a service provider is
operating with less than the appropriate qualified staff or its
program has been disrupted, the office of behavioral health services or its successor, shall visit the program and provide
technical support and arrange for additional personnel to resolve
the shortage or program disruption.
If either the service provider or the office of behavioral
health services or its successor, fail to correct the personnel
shortage or the program disruption within thirty-six hours, the
eligible recipient of services or their family may obtain emergency
injunctive relief in the circuit court in which the personnel
shortage or program disruption occurs. The court may order the
service provider to hire additional staff or contract for necessary
services to remedy the staff shortage or the program disruption.
In addition, the court may order the office of behavioral health
services or its successor, to ensure payment for the additional
staff or contract costs incurred by the service provider. The
court may also award attorney fees to the service recipient if the
hearing on the matter supports the allegations in the petition for
injunctive relief.
§16-29F-4. Office of behavioral health services and the bureau of
medical services or their successor agencies to
ensure choice of service provider.
Within ninety days of the effective date of this article, the
office of behavioral health services or its successor, shall
conduct a survey of the number of service providers offering
services in each county of this state. If after this review, it is determined that there are less than three service providers in each
county of this state offering services to eligible recipients of
services and the families, the office of behavioral health services
or its successor, shall immediately seek to contract with other
service providers to offer services in any county with less than
three qualified behavioral health service providers.
§16-29F-5. Assurance of fair and expedited hearing procedures.
Every party executing an individualized program plan and the
office of behavioral health services or its successor, are
responsible for carrying out the provision of services set out
therein. Any party failing to implement and execute the individual
program plan as agreed shall be liable to the eligible recipient of
services and their family for any costs incurred by the recipient
and his or her family.
The office of behavioral health services or its successor, and
all service providers contracting with the office of behavioral
health services or its successor, to provide services to eligible
recipients and their families shall implement a two step appeal
process for resolving disagreements. The first step of the appeal
process shall be a mediation process involving a trained mediator,
not associated with the office of behavioral health services or its
successor, or the department of health and human resources. Any
recipient of services or his or her family disagreeing with a
decision of the service provider or the office of behavioral health services or its successor, may appeal the decision to the
designated mediator by notifying the service provider or the office
of behavioral health services or its successor. Within three days
of the notice, the mediator shall attempt to resolve the matter.
If after two days of mediation, the parties cannot agree, the
administrator of the office of behavioral health services or its
successor, shall appoint an independent hearing officer to meet
with the recipient of services and his or her family and, if
applicable the service provider to seek to resolve the appeal. The
independent hearing officer shall conduct a hearing on the appeal
within five days of the decision of the mediator.
The decision of the independent hearing officer is the final
administrative hearing in the appeal process. Any party
dissatisfied by the decision of the independent hearing officer may
appeal the decision to the circuit court of the county in which the
appeal arose. Pending the final administrative decision, the
recipient of services shall continue to receive the services set
out in his or her individual program plan and shall remain in the
same program at his or her option, unless it is determined that to
do so would expose the recipient of services to an unreasonable
risk of harm.
If at any point in the appeal process the service provider or
the office of behavioral health services or its successor, is
represented by an attorney, the office of behavioral health services or its successor, shall authorize the payment of attorney
fees to an attorney selected by the recipient of services or his or
her family to represent them in the appeal.
NOTE: The purpose of this bill is to establish the
responsibilities and obligations of the office of behavioral health
services or its successor, and service providers to eligible
recipients of services and to ensure fair and effective resolution
of grievances. The bill also establishes a procedure for ensuring
freedom of choice with respect to service providers and allow for
injunctive relief in certain circumstances.
§16-29F- is new; therefore, strike-throughs and underscoring
have been omitted.