Notwithstanding any other provision of this code to the contrary, whenever in this code there is a reference to the director of the department of mental health, it shall be construed to mean and shall be a reference to the commissioner of the department of mental health.
(a) To develop and maintain a state plan which sets forth needs of the state in the areas of mental health and intellectual disability; goals and objectives for meeting those needs; plan of operation for achieving the stated goals and objectives, including organizational structure; and statement of requirements in personnel funds and authority for achieving the goals and objectives.
(b) To appoint deputies and assistants to supervise the departmental programs, including hospital and residential services, and such other assistants and employees as may be necessary for the efficient operation of the department and all its programs.
(c) To promulgate rules clearly specifying the respective duties and responsibilities of program directors and fiscal administrators, making a clear distinction between the respective functions of these officials.
(d) To delegate to any of his or her appointees, assistants or employees all powers and duties vested in the commissioner, including the power to execute contracts and agreements in the name of the department as provided in this article, but the commissioner shall be responsible for the acts of such appointees, assistants and employees.
(e) To supervise and coordinate the operation of the state hospitals named in article two of this chapter and any other state hospitals, centers or institutions hereafter created for the care and treatment of the mentally ill or intellectually disabled, or both.
(f) To transfer a patient from any state hospital to any other state hospital or clinic under his or her control and, by agreement with the state Division of Corrections, transfer a patient from a state hospital to an institution, other than correctional, under the supervision of the state Division of Corrections.
(g) To make periodic reports to the Governor and to the Legislature on the condition of the state hospitals, centers and institutions or on other matters within his or her authority, which shall include recommendations for improvement of any mental health facility and any other matters affecting the mental health of the people of the state.
The Secretary of the Department of Health and Human Resources has all of the authority vested in the divisions of the former Department of Mental Health, as hereinafter provided.
The Secretary of the Department of Health and Human Resources is hereby authorized and empowered to accept and use for the benefit of a state hospital, center or institution, or for any other mental health purpose specified in this chapter, any gift or devise of any property or thing which lawfully may be given. If such a gift or devise is for a specific purpose or for a particular state hospital, center or institution, it shall be used as specified. Any gift or devise of any property or thing which lawfully may be given and whatever profit may arise from its use or investment shall be deposited in a special revenue fund with the State Treasurer, and shall be used only as specified by the donor or donors.
(a) To keep the records in the department.
(b) To receive and disburse funds for the department as the agent of the commissioner of the department.
(c) To assemble and analyze departmental budget estimates, review requests for transfer of funds and maintain departmental appropriation and fiscal records.
(d) To make rules and regulations governing the administration and business management of the state hospitals, formulate standard fiscal procedures, and make recommendations for improvement; to make regulations concerning any superintendent's trustee funds heretofore established by authority of section three-a, article one, chapter twenty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended.
(e) To have the responsibility for the maintenance of the land, buildings and equipment of state hospitals.
(f) To review requisitions for supplies and equipment, and cooperate with the division of purchases in development and drafting of specifications.
(g) To handle the personnel records of the department and to process payrolls.
(h) To enter into contracts for the department consistent with his assigned duties.
(i) To develop job classifications and standards for employees of the department.
(j) To perform any other duties assigned to the division by the commissioner.
The supervisor of this division has the following powers and duties:
(1) To develop professional standards, provide supervision of state hospitals, analyze hospital programs and inspect individual hospitals.
(2) To assist in recruiting professional staff.
(3) To take primary responsibility for the education and training of professional and subprofessional personnel.
(4) To carry on or stimulate research activities related to medical and psychiatric facilities of the department, and render specialized assistance to hospital superintendents.
(5) To establish liaison with appropriate state agencies and with private groups interested in mental health, including the state Bureau for Public Health, Division of Corrections, the Department of Education, the Board of Governors of West Virginia University, and the West Virginia Association for Mental Health, Incorporated.
(6) To license, supervise and inspect any hospital, center or institution, or part of any hospital, center or institution, maintained and operated by any political subdivision or by any person, persons, association or corporation to provide inpatient care and treatment for the mentally ill, or individuals with an intellectual disability, or both.
(7) To perform any other duties assigned to the division by the Secretary of the Department of Health and Human Resources.
The supervisor of this division shall also have the following powers and duties:
(1) To establish standards for and supervise the operation of community mental health clinics for adults and children and to develop new community facilities and community service programs for the overall improvement of the regional mental health facilities.
(2) To develop a comprehensive and practical program of mental health education of the public, especially at the local level.
(3) To work with county mental hygiene commissions and circuit courts.
(4) To determine and approve schedules of reasonable cost for reimbursement by the patient or responsible relative for mental health services rendered.
(5) To perform any other duties assigned to the division by the director of the department.
All moneys appropriated for the department of mental health and state hospitals may be expended on proper requisitions issued by the director of mental health or his duly authorized agent. Whenever the appropriations by the Legislature for the state hospitals are insufficient to pay the expenses of conducting such institutions, the director of mental health shall certify the deficiency to the governor. The certificate shall state the name of the state hospital and the items and amount in detail needed, and the governor may direct payment of the same or any part thereof out of any appropriation available for that purpose.
(1) The supervisor and personnel of this division shall assist the director of the department of health in the establishment of a program for the care, treatment and rehabilitation of alcoholics and drug abusers; for research into the causes, prevention, and treatment of alcoholism and drug abuse; for the training of personnel to provide the requisite rehabilitation of alcoholics and drug abusers; and for the education of the public concerning alcoholism and drug abuse.
(2) The department's program for the care, treatment, and rehabilitation of alcoholics and drug abusers may include, when intended for such purposes, the establishment of special clinics or wards within, attached to, or upon the grounds of one or more of the state hospitals under the control of the department of health; the acquisition in the name of the department of real and personal property and the construction of buildings and other facilities; the leasing of suitable clinics, hospitals or other facilities; and the utilization, through contracts or otherwise, of the available services and assistance of any professional or nonprofessional persons, groups, organizations or institutions in the development, promotion and conduct of the department's program.
(3) Neither the department of health nor the division on alcoholism and drug abuse shall be required to accept any alcoholic or drug abuser voluntarily seeking hospitalization for clinical or hospital care, treatment or rehabilitation; but the department may accept, pursuant to its adopted and promulgated rules and regulations, responsibility for clinical or hospital care, treatment or rehabilitation of any alcoholic or drug abuser through arrangements made voluntarily with the department by him or some person acting in his behalf: Provided, That any such person accepted by the department on a voluntary basis shall be charged a minimum fee unless he shows, to the satisfaction of the department, that he is unable to pay the fee: Provided, however, That the department shall accept all alcoholics and drug abusers committed by a mental hygiene commissioner or judicial officer in accordance with the procedures established by article six-a of this chapter: Provided further, That notwithstanding any provision in article five of this chapter which may be to the contrary, the supervisor of the division on alcoholism and drug abuse may specify the clinic or hospital to which the alcoholic or drug abuser shall be committed after a final commitment hearing provided in section four, article five of this chapter.
(4) The department's program of research into the causes, prevention and treatment of alcoholism and drug abuse may include the utilization, through contracts or otherwise, of the available services and assistance of any private and public professional or nonprofessional persons, groups, organizations or institutions, as well as cooperation with private and public agencies engaged in research in alcoholism or drug abuse or rehabilitation of alcoholics or drug abusers.
(5)(A) The department's programs shall also provide for the training of personnel to work with alcoholics and drug abusers and the informing of the public as well as interested groups and persons concerning alcoholism and drug abuse and the prevention and treatment thereof.
(B) The department shall train counselors who shall be responsible for working with youth and developing community programs for youth with drug and alcohol problems. Personnel shall be available to work with these youth in their community and school settings.
(C) The department shall provide at least two comprehensive outpatient programs for youth whose drug or alcohol problems make them a candidate for such programs as determined by qualified mental health professionals. At least one program shall serve arural area. These programs shall include, at minimum: Educational lectures; co- dependency, peer group, individual and family counseling; services for at risk population; and relapse, prevention and after care programs. One such program shall be established by the first day of January, one thousand nine hundred eighty- seven, and a second program by the first day of July, one thousand nine hundred eighty-seven.
(6) The department may employ such medical, psychiatric, psychological, secretarial and other assistance as may be necessary to carry out the provisions of this section.
(b) As used in this chapter or in section ten, article one, chapter sixteen of the code:
(1) "Alcoholic" means a person who suffers from alcoholism as defined in subdivision (2) of this subsection.
(2) "Alcoholism" means a disease or illness characterized by psychological or physiological addiction to alcoholic beverages as manifested by: (A) The inability to control one's consumption of alcoholic beverages except through total abstinence or (B) the inability to control one's behavior when consuming alcoholic beverages, or (C) both.
(3) "Alcohol abuser" means a person whose use of alcohol has produced any of the effects described in subdivision (4) of this subsection.
(4) "Alcohol abuse" means the periodic, frequent or constant consumption of alcoholic beverages to the extent that one's health is substantially impaired or endangered or one's social or economic functioning is substantially disrupted.
(5) "Drug abuser" means a person who is in a state of psychic or physical dependence, or both, arising from the administration of any controlled substance, as that term is defined in chapter sixty-a of this code, on a continuous basis.
(6) "Drug abuse" means the use of any controlled substance as that term is defined in said chapter sixty-a, until such time as the user has become dependent upon or addicted to the same.
(a) A behavioral health provider licensed by the Department of Health and Human Resources adversely affected by an order or citation of a deficient practice issued pursuant to this article or pursuant to federal law may request to use the independent informal dispute resolution process established by this section. A licensee may contest a cited deficiency as contrary to rule, regulation or law or unwarranted by the facts, or any combination thereof.
(b) The independent informal dispute resolution process is not a formal evidentiary proceeding and utilization of the independent informal dispute resolution process does not waive the right of the licensee to request a formal hearing with the secretary.
(c) The independent informal dispute resolution process shall consist of the following:
(1) The secretary shall transmit to the licensee a statement of deficiencies attributed to the licensee and request that the licensee submit a plan of correction addressing the cited deficiencies no later than ten working days following the last day of the survey or inspection, or no later than ten working days following the last day of a complaint investigation. 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.
(2) When the licensee returns its plan of correction to the secretary, the licensee may request, in writing, to participate in the independent informal dispute resolution process to protest or refute all or part of the cited deficiencies within ten working days. The secretary may not release the final report until all dispute processes are resolved.
(3) The Secretary of the West Virginia Department of Health and Human Resources (hereinafter "secretary") shall approve and establish a panel of at least three independent review providers: Provided, That in lieu of establishing a panel, the secretary may use an existing panel of approved independent review providers. The secretary shall contract with the independent review providers to conduct the independent informal dispute resolution processes. Each independent review provider shall be accredited by the Utilization Review Accreditation Commission. When a licensee requests an independent informal dispute resolution process, the secretary shall choose one independent review provider from the approved panel to conduct the process.
(4) The secretary shall refer the request to an independent review provider from the panel of certified independent review providers approved by the department within five working days of receipt of the written request for the independent informal dispute resolution process made by a licensee. The secretary shall vary the selection of the independent review providers on a rotating basis. The secretary shall acknowledge in writing to the licensee that the request for independent review has been received and forwarded to the independent review provider. The notice shall include the name and professional address of the independent review provider.
(5) The independent review provider shall hold an independent informal dispute resolution conference, unless additional time is requested by either the licensee, the Department of Health and Human Resources or the independent review provider and approved by the secretary, within ten working days of receipt of the written request for the independent informal dispute resolution process made by a licensee. The licensee or the Department of Health and Human Resources may submit additional information before the independent informal dispute resolution conference.
(6) Neither the secretary nor the licensee may be accompanied by counsel during the independent informal dispute resolution conference. The manner in which the independent informal dispute resolution conference is held is at the discretion of the licensee, but is limited to:
(A) A review of written information submitted by the licensee;
(B) A telephonic conference; or
(C) A face-to-face conference held at a mutually agreed upon location.
(7) If the independent review provider determines the need for additional information, clarification or discussion at the conclusion of the independent informal dispute resolution conference, the secretary and the licensee shall present the requested information.
(8) The independent review provider shall make a determination within ten working days of receipt of any additional information as provided in subdivision (7) of this section or the conclusion of the independent informal dispute resolution conference, based upon the facts and findings presented, and shall transmit a written decision containing the rationale for its determination to the secretary.
(9) If the secretary disagrees with the determination, the secretary may reject the determination made by the independent review provider and shall issue an order setting forth the rationale for the reversal of the independent review provider's decision to the licensee within ten working days of receiving the independent review provider's determination.
(10) If the secretary accepts the determination, the secretary shall issue an order affirming the independent review provider's determination within ten working days of receiving the independent review provider's determination.
(11) If the independent review provider determines that the original statement of deficiencies should be changed as a result of the independent informal dispute resolution process and the secretary accepts the determination, the secretary shall transmit a revised statement of deficiencies to the licensee within ten working days of the independent review provider's determination.
(12) The licensee shall submit a revised plan to correct any remaining deficiencies to the secretary within ten working days of receipt of the secretary's order and the revised statement of deficiencies.
(d) Under the following circumstances, the licensee is responsible for certain costs of the independent informal dispute resolution review, which shall be remitted to the secretary within sixty days of the informal conference order:
(1) If the licensee requests a face-to-face conference, the licensee shall pay any costs incurred by the independent review provider that exceed the cost of a telephonic conference, regardless of which party ultimately prevails;
(2) If the independent review provider's decision supports the entirety of the originally written contested deficiency or adverse action taken by the secretary, the licensee shall reimburse the secretary for the cost charged by the independent review provider; or
(3) If the independent review provider's decision supports some of the originally written contested deficiencies, but not all of them, the licensee shall reimburse the secretary for the cost charged by the independent review provider on a pro-rata basis as determined by the secretary.
(e) Establishment of the independent informal dispute resolution process does not preclude licensees from utilizing other informal dispute resolution processes provided by statute or rule in lieu of the independent informal dispute resolution process.
(f) Administrative and judicial review of a decision rendered through the independent informal dispute resolution process may be made in accordance with article five, chapter twenty-nine-a of this code.
(g) Any decision issued by the secretary as a result of the independent informal dispute resolution process shall be made effective from the date of issuance.
(h) The pendency of administrative or judicial review does not prevent the secretary or a licensee from obtaining injunctive relief as provided by statute or rule.