ENROLLED
COMMITTEE SUBSTITUTE
for
H. B. 2522
[Passed March 8, 2011; in effect ninety days from passage.]
AN ACT to amend and reenact §16-5C-8, §16-5C-10 and §16-5C-12 of
the Code of West Virginia, 1931, as amended; and to amend said
code by adding a new section, designated §16-5C-12a, all
relating to nursing home administrative appeals; complaint
hearing procedures; establishing an independent disputes
resolution process for nursing homes; clarifying the informal
and formal review process; and clarifying the judicial review
process.
Be it enacted by the Legislature of West Virginia:
That §16-5C-8, §16-5C-10 and §16-5C-12 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto a new section, designated §16-5C-
12a, all to read as follows:
ARTICLE 5C. NURSING HOMES.
§16-5C-8. Investigation of complaints.
(a) The director shall establish rules for prompt
investigation of all complaints of alleged violations by nursing
homes of applicable requirements of state law or rules, except for
such complaints that the director determines are willfully intended
to harass a licensee or are without any reasonable basis. Such procedures shall include provisions for ensuring the
confidentiality of the complainant and for promptly informing the
complainant and the nursing home involved of the results of the
investigation.
(b) If, after its investigation, the director determines that
the complaint has merit, the director shall take appropriate
disciplinary action and shall advise any injured party of the
possibility of a civil remedy.
(1) A nursing home or licensee 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.
(2) No later than twenty working days following the last day
of a complaint investigation, the director shall transmit to the
nursing home a statement of deficiencies committed by the facility.
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.
(c)
No nursing home may discharge or in any manner
discriminate against any resident, legal representative or employee
for the reason that the resident, legal representative or employee
has filed a complaint or participated in any proceeding specified
in this article. Violation of this prohibition by any nursing home
constitutes ground for the suspension or revocation of the license
of the nursing home as provided in section eleven of this article.
Any type of discriminatory treatment of a resident, legal
representative or employee by whom, or upon whose behalf, a complaint has been submitted to the director, or any proceeding
instituted under this article, within one hundred twenty days of
the filing of the complaint or the institution of such action,
shall raise a rebuttable presumption that such action was taken by
the nursing home in retaliation for such complaint or action.
§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.
(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.
§16-5C-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 may
request an informal and formal hearing at which the licensee or
applicant may contest the order as contrary to law or unwarranted
by the facts or both. All of the pertinent provisions of article
five, chapter twenty-nine-a of this code apply to and govern a
formal hearing and the administrative procedures in connection with
any formal hearing.
A facility or licensee adversely affected by an order or
citation of a deficient practice issued pursuant to this article or
by a citation issued for a deficient practice pursuant to federal
law may request the independent informal dispute resolution process
contained in section twelve-a of this article. A facility may
contest a cited deficiency as contrary to law or unwarranted by the
facts or both.
The director may impose the following prior to or during the
pendency of an informal hearing, an independent informal dispute
resolution process or of a formal hearing:
(1) A reduction in the bed quota pursuant to section eleven of
this article; or
(2) Transfer of residents and a ban on new admissions pursuant
to section eleven of this article.
(b) Informal hearings shall be held within twenty working days
of the director's receipt of timely request for appeal, unless the
licensee or applicant aggrieved by the order consents to a
postponement or continuance. In no event may the informal hearing
occur more than thirty business days after the director receives
timely request for appeal. At the informal hearing, neither the
licensee or applicant nor the director may be represented by an
attorney. Within ten days of the conclusion of the informal
hearing, the director shall issue an informal hearing order,
including a basis for the decision.
(c) If the applicant or licensee requested a formal hearing
only, the director and the licensee shall proceed in accordance
with the provisions of the Department of Health and Human Resources
rules of procedure for contested case hearings and declaratory
rulings. If the applicant or licensee also requested an informal
hearing or the independent informal dispute resolution process
contained in section twelve-a of this article, and if the order is
not favorable to the applicant or licensee, the director shall
notify the administrative hearing examiner of the request for an
appeal within five business days of issuing the order.
§16-5C-12a. Independent informal dispute resolution.
(a) A facility or licensee adversely affected by an order or
citation of a deficient practice issued pursuant to this article
or by a citation issued for a deficient practice pursuant to
federal law may request the independent informal dispute resolution
process. A facility may contest a cited deficiency as contrary to
law or unwarranted by the facts or both.
(b) The director shall contract with at least three
independent review organizations to conduct an independent informal
dispute resolution process for facilities. The independent review
organization shall be accredited by the Utilization Review
Accreditation Commission.
(c) The independent informal dispute resolution process is not
a formal evidentiary proceeding and utilizing the independent
informal dispute resolution process does not waive the facility's
right to a formal hearing.
(d) The independent informal dispute resolution process
consists of the following:
(1) No later than ten working days following the last day of
the survey or inspection, or no later than twenty working days
following the last day of a complaint investigation, the director
shall transmit to the facility a statement of deficiencies
committed by the facility. 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 facility returns its plan to correct the cited
deficiencies to the director, the facility may request in writing
the independent informal dispute resolution process to refute the cited deficiencies;
(3) Within five working days of receipt of the written request
for the independent informal dispute resolution process made by a
facility, the director shall refer the request to an independent
review organization from the list of certified independent review
organizations approved by the state. The director shall vary the
selection of the independent review organization on a rotating
basis. The director shall acknowledge in writing to the facility
that the request for independent review has been received and
forwarded to an independent review organization for review. The
notice shall include the name and address of the independent review
organization.
(4) Within ten working days of receipt of the written request
for the independent informal dispute resolution process made by a
facility, the independent review organization shall hold an
independent informal dispute resolution conference unless
additional time is requested by the facility. Before the
independent informal dispute resolution conference, the facility
may submit additional information.
(5) The facility may not 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 facility, but is limited to:
(A) A desk review of written information submitted by the
facility; or
(B) A telephonic conference; or
(C) A face-to-face conference held at the facility or a
mutually agreed upon location.
(6) If the independent review organization determines the need
for additional information, clarification or discussion after
conclusion of the independent informal dispute resolution
conference, the director and the facility shall present the
requested information.
(7) Within ten calendar days of the independent informal
dispute resolution conference, the independent review organization
shall provide and make a determination, based upon the facts and
findings presented, and shall transmit a written decision
containing the rationale for its determination to the facility and
the director.
(8) If the director disagrees with the determination, the
director may reject the determination made by the independent
review organization and shall issue an order setting forth the
rationale for the reversal of the independent review organization's
decision to the facility within ten calendar days of receiving the
independent review organization's determination.
(9) If the director accepts the determination, the director
shall issue an order affirming the independent review
organization's determination within ten calendar days of receiving
the independent review organization's determination.
(10) If the independent review organization determines that
the original statement of deficiencies should be changed as a
result of the independent informal dispute resolution process and
the director accepts the determination, the director shall transmit
a revised statement of deficiencies to the facility within ten
calendar days of the independent review organization's
determination.
(11) Within ten calendar days of receipt of the director's
order and the revised statement of deficiencies, the facility shall
submit a revised plan to correct any remaining deficiencies to the
director.
(e) A facility has ten calendar days after receipt of the
director's order to request a formal hearing for any deficient
practice cited under this article. If the facility requests a
formal hearing, the director and the facility shall proceed in
accordance with the provisions of article five, chapter
twenty-nine-a of this code.
(f) Under the following circumstances, the facility is
responsible for certain costs of the independent informal dispute
resolution review, which shall be remitted to the director within
sixty days of the informal hearing order:
(1) If the facility requests a face-to-face conference, the
facility shall pay any costs incurred by the independent review
organization that exceed the cost of a telephonic conference,
regardless of which party ultimately prevails.
(2) If the independent review organization's decision supports
the originally written contested deficiency or adverse action taken
by the director, the facility shall reimburse the director for the
cost charged by the independent review organization. If the
independent review organization's decision supports some of the
originally written contested deficiencies, but not all of them, the
facility shall reimburse the director for the cost charged by the
independent review organization on a pro rata basis.
(g) The Director shall report to the Legislative Oversight
Commission on Health and Human Resources Accountability during the July interim meetings in 2013 on the informal dispute resolution
process. This report shall at a minimum include the number of
times the informal dispute resolution process is requested, the
result of the process, and the number of times the director does
not agree and changes the determination of the independent review
organization.
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