H. B. 4385


(By Delegates Hatfield, Coleman, Manchin,

R. M. Thompson, Faircloth, Hubbard and Susman)


[Introduced February 4, 2002; referred to the

Committee on Government Organization then Finance.]




A BILL to amend and reenact sections ten and eleven, 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 five-a; and to amend and reenact sections one and eight, article twenty-five, chapter thirty of said code, all relating to the operation of nursing homes; requiring employment of director of nursing and nursing home administrator; allowing provision of technical assistance to nursing homes; requiring ban on new admissions to nursing home where licensee is not providing adequate staff or training for its nursing staff; allowing appointment of temporary management for a nursing home that is a poor performer; and providing for the suspension or revocation of nursing home administrator's license under certain circumstances.

Be it enacted by the Legislature of West Virginia:

That sections ten and eleven, 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 five-a; and that sections one and eight, article twenty-five, chapter thirty of said code be amended and reenacted, all to read as follows:

CHAPTER 16. PUBLIC HEALTH.

ARTICLE 5C. NURSING HOMES.

§16-5C-5a. Required personnel; director of nursing; nursing home administrator.

(a) Each nursing home shall employ a:
(1) Director of nursing who:
(A) Is a registered professional nurse; and
(B) Serves on a full-time basis, and on duty at the nursing home at least five days a week, eight hours a day during the day shift; and
(2) Nursing home administrator licensed under the provisions of article twenty-five, chapter thirty of this code, who, on a monthly basis, is on duty at the nursing home an average of at least thirty hours a week.
(b) The director of nursing and the administrator may not be the same individual.
§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 nursing home's compliance with the provisions of this article and the rules adopted hereunder under this article. The director shall send a copy of such the report to the nursing home and shall specify a time within which the nursing home shall submit a plan for correction of such the deficiencies. 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.
(b) With regard to a nursing home with deficiencies and upon 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 may be construed to prohibit prohibits 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 such violation occurring during a period of twelve full months.
(d) Civil penalties assessed against nursing homes shall may 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) 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 are 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.
(g) The director shall assess a civil penalty of not more than one thousand dollars against an individual who willfully and knowingly certifies a material and false statement in a resident assessment. Such The penalty shall be imposed with respect to each such 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 a material and false statement in a resident assessment. Such The penalty shall be imposed with respect to each such resident assessment.
(h) The director shall assess a civil penalty of not more than two thousand dollars against any individual who notifies, or causes to be notified, a 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.
(i) If the director assesses a penalty under this section, the director shall cause delivery of notice of such the penalty by personal service or by certified mail. Said 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.
(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 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 for: (1) The protection of the health or property of facility residents; (2) long-term care educational activities or technical assistance to facilities; (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.
(k) The opportunity for a hearing on an action taken under this section shall be as provided in section twelve of this article.
§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)(1) The director may reduce the bed quota of the nursing home or impose a ban on new admissions, where he or she finds upon inspection of the nursing home that the licensee is not providing adequate care under the nursing home's existing bed quota, and that reduction in quota or ban on new admissions, or both, would place the licensee in a position to render adequate care. 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 the order, the reasons therefor for the order and a date set for compliance.
(2) The director shall impose a ban on new admissions where he or she finds, upon inspection of the nursing home that the licensee is not providing adequate staff or training to its nursing staff pursuant to state rules.
(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 rules promulgated pursuant hereto to this article.
(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 the 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 The notice and copy of the complaint shall be served on such 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) If the director finds upon inspection of the nursing home that it is a poor performer, as defined in the state rules, in three surveys within a two-year period, the director shall file a petition with the applicable circuit court to appoint temporary management. 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 nursing home?s deficiencies under this article, or under titles eighteen or nineteen of the federal Social Security Act, if applicable, are likely to result in continuing actual harm to its residents and issue an order to appoint temporary management to oversee the operation of the facility and to assure the health, safety, welfare and rights of the nursing home?s residents while improvements are made in order to bring the 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.
(e) (f) 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 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 residents, and issue an order to:
(1) Close the nursing home;
(2) Transfer residents in the nursing home to other 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 nursing home's 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 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 nursing home, the transfer of residents, or the appointment of temporary management, the circuit court shall hold a hearing no later than seven days thereafter after the petition is filed at which time the director and the licensee or operator of the nursing home 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 nursing home in favor of temporary management. The temporary management shall be is responsible to the court and shall have such has 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 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 nursing home or to repair or improve the 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 nursing home. Priority shall be given to expenditures for current direct resident care or the transfer of 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, is not liable for conditions at the nursing 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 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 The costs shall be recoverable through recoupment from future reimbursement from the state medicaid agency in the same fashion as a benefits overpayment.
The temporary management shall promptly employ at least one person who is licensed as a nursing home administrator in West Virginia.
A temporary management established for the purpose of making improvements in order to bring a nursing home into compliance with applicable requirements may not be terminated until the court has determined that the nursing home has the management capability to ensure continued compliance with all applicable requirements, except if the court has not made such the determination within six months of the establishment of the temporary management, the temporary management terminates by operation of law at that time, and the 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 nursing 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 the assessment or thirty days after receipt of the director's final order following a hearing, whichever is later. All such the assessments against a nursing home that are unpaid shall be added to the nursing home's licensure fee and may be filed as a lien against the property of the licensee or operator of the nursing home. Funds received from such the assessments shall be deposited as funds received in section ten of this article.
(g) The director may propose additional 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 the rules shall expand the power of the director to the minimum extent required by federal requirements. Such 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.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 25. NURSING HOME ADMINISTRATORS.
§30-25-1. Definitions.

As used in this article, unless a different meaning appears from the context:
 (1) "Administrator of record" means the administrator responsible at the facility at the time of the deficient practice, if the administrator has been at the facility for more than one month.
(2) "Board" means the West Virginia nursing home administrators licensing board created by this article.
(1) (3) The term "Nursing home" means a nursing home as that term is defined in subdivision (c) section two, article five-c, chapter sixteen of this code.
(2) The term (4) "Nursing home administrator" means a professional who is an individual responsible for planning, organizing, directing and controlling a nursing home, or who in fact performs such the functions, whether or not such the individual has an ownership interest in the nursing home and whether or not such the functions are shared with one or more other persons.
(3) The term "board" shall mean the West Virginia nursing home administrators licensing board created by this article.
(4) The term (5) "Person" or "applicant" shall mean means an individual.
(6) "Poor performance inspection" means an inspection of a nursing home conducted by the department of health and human resources which finds the facility has deficiencies that caused actual harm to its residents, or had the widespread potential for actual harm.
(7) "Probationary license" means a license issued after the holder has been the administrator at a single facility for two consecutive poor performance inspections. The probationary license must be posted in a public place at the facility in which the holder is employed as an administrator and shall note that the deficiencies that led to the probationary license are available from the West Virginia nursing home licensing board. A probationary license remains in effect for five years.
§30-25-8. Suspension or revocation of license or emergency permit.

(a) The board may at any time upon its own motion and shall, upon the verified written complaint of any person, conduct an investigation to determine whether there are any grounds for the suspension or revocation of a license or emergency permit issued under the provisions of this article.
(b) The board shall suspend or revoke any license or emergency permit when it finds the holder thereof of the license has:
(1) Obtained a license or emergency permit by means of fraud or deceit; or
(2) Failed or refused to comply with the provisions of this article, article five-c, chapter sixteen or any reasonable rule and regulation promulgated by the board or any order or final decision of the board.
(c) The board shall also suspend or revoke any license or emergency permit if it finds the existence of any ground which would justify the denial of an application for such license or permit if application were then being made for it.
(d) If the board determines that a holder of a license has been the administrator of record at a single facility that has had two consecutive poor performance inspections, the board shall issue the holder a probationary license. If an administrator of record with a probationary license has two consecutive poor performance inspections at a single facility, or has a total of three poor performance inspections in a consecutive four-year period within a single facility or at multiple facilities, the board shall suspend the holder's license for a period of not less than six months. If an administrator of record who has a license that bas been suspended within the last five years has two consecutive poor performance inspections at a single facility, or has a total of two poor performance inspections in a three-year period within a single facility or at multiple facilities, the board shall revoke the holder?s license for a period of not less than five years.


NOTE: The purpose of this bill is to provide enhanced enforcement mechanisms to assist in ensuring that nursing homes are providing adequate care for their residents.

§16-5C-5a is new; therefore, strike-throughs and underscoring have been omitted.

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