H. B. 3090


(By Delegates Compton and Leach)
[Introduced March 29, 2001; referred to the
Committee on Government Organization then Finance.]




A BILL to amend and reenact section twelve, article five-d, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section twelve, article five-h of said chapter, all relating to administrative appeals for personal care homes and residential board and care homes.

Be it enacted by the Legislature of West Virginia:
That section twelve, article five-d, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section twelve, article five-h of said chapter be amended and reenacted, all to read as follows:

ARTICLE 5D. PERSONAL CARE HOMES.
§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 request a formal or informal hearing with the director or program manager in order to contest the order as contrary to law or unwarranted by the facts or both. If the contested matter is not resolved at the informal hearing, the licensee or applicant may request a formal hearing before the director. An informal hearing is not a prerequisite for requesting a formal hearing.
(b) Informal hearings shall be held within twenty business days of the director's receipt of timely request for appeal, unless the licensee or applicant consents to a postponement or continuance. In no event may the informal hearing occur more than thirty business days after the director receives a timely request for appeal. Neither the licensee or applicant nor the director may be represented by an attorney at the informal hearing. Within ten business days of the conclusion of the informal hearing the director, program manager or designee shall issue an informal hearing order, including the basis for the decision. If the order is not favorable to the licensee or applicant, the licensee or applicant may request an appeal and a formal hearing. The director shall notify the administrative hearing examiner of the request for appeal within five business days of issuing the informal hearing order.
(c) If the applicant or licensee requests a formal hearing without a prior informal hearing, or if an applicant or licensee appeals the order issued as a result of the informal hearing, the director shall proceed in accordance with the department of health and human resources rules of procedure for contested case hearings and declaratory rulings and 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.
(d) Following the a formal 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 the order 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.
(e) 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.
 ARTICLE 5H. RESIDENTIAL BOARD AND CARE HOMES.
§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 may request a formal or informal hearing with the director or the program manager at which he or she may in order to contest such order as contrary to law or unwarranted by the facts or both. If the contested matter is not resolved at the informal hearing, the licensee or applicant may request a formal hearing before the director. An informal hearing is not a pre- requisite for requesting a formal hearing.
(b) Informal hearings shall be held within twenty business days of the director's receipt of timely request for appeal, unless the licensee or applicant consents to a postponement or continuance. In no event may the informal hearing occur more than thirty business days after the director receives a timely request for appeal. Neither the licensee or applicant nor the director may be represented by an attorney at the informal hearing. Within ten business days of the conclusion of the informal hearing the director, program manager or designee shall issue an informal hearing order, including the basis for the decision. If the order is not favorable to the licensee or applicant, the licensee or applicant may request an appeal and a formal hearing. The director shall notify the administrative hearing examiner of the request for appeal within five business days of issuing the informal hearing order.
(c) If the applicant or licensee requests a formal hearing without a prior informal hearing, or if an applicant or licensee appeals the order issued as a result of the informal hearing, the director shall proceed in accordance with the department of health rules of procedure for contested case hearings and declaratory rulings and All of the pertinent provisions of article five, chapter twenty-nine-a of this code. shall apply to and govern such hearings 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.
(d) Following such the formal 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 the order 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) (e) 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.




NOTE: The purpose of this bill is to provide for informal and formal procedures for personal care home and residential board and care home applicants and licensees to protest orders of the director or the program manager.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.