(1) No later than ten working days following the last day of the survey or inspection, the director shall transmit to the nursing home a copy of such report and shall specify a time within which the nursing home shall submit a plan for correction of such deficiencies.
(2)Additionally, notification of the availability of the independent informal dispute resolution process and an explanation of the independent informal dispute resolution process shall be included in the transmittal.
(3) A nursing home adversely affected by an order or citation of a deficient practice issued pursuant to this section may request the independent informal dispute resolution process contained in section twelve-a of this article.
(4) The plan submitted by the nursing home shall be approved, rejected or modified by the director.
(5) 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 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 home 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) 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.
(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 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 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 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.
(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 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; (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. Note: WV Code updated with legislation passed through the 2012 1st Special Session