The provisions of this article are hereby declared to be remedial and shall be liberally construed to effectuate its purposes and intents.
(a) "Deficiency" means a nursing home's failure to meet the requirements specified in article five-c, chapter sixteen of this code and rules promulgated thereunder.
(b) "Director" means the secretary of the department of health and human resources or his or her designee.
(c) "Household" means a private home or residence which is separate from or unattached to a nursing home.
(d) "Immediate jeopardy" means a situation in which the nursing home's noncompliance with one or more of the provisions of this article or rules promulgated thereunder has caused or is likely to cause serious harm, impairment or death to a resident.
(e) "Nursing home" or "facility" means any institution, residence or place, or any part or unit thereof, however named, in this state which is advertised, offered, maintained or operated by the ownership or management, whether for a consideration or not, for the express or implied purpose of providing accommodations and care, for a period of more than twenty-four hours, for four or more persons who are ill or otherwise incapacitated and in need of extensive, ongoing nursing care due to physical or mental impairment or which provides services for the rehabilitation of persons who are convalescing from illness or incapacitation.
The care or treatment in a household, whether for compensationor not, of any person related by blood or marriage, within the degree of consanguinity of second cousin to the head of the household, or his or her spouse, may not be deemed to constitute a nursing home within the meaning of this article. Nothing contained in this article applies to nursing homes operated by the federal government; or extended care facilities operated in conjunction with a hospital; or institutions operated for the treatment and care of alcoholic patients; or offices of physicians; or hotels, boarding homes or other similar places that furnish to their guests only room and board; or to homes or asylums operated by fraternal orders pursuant to article three, chapter thirty-five of this code.
(f) "Nursing care" means those procedures commonly employed in providing for the physical, emotional and rehabilitational needs of the ill or otherwise incapacitated which require technical skills and knowledge beyond that which the untrained person possesses, including, but not limited to, such procedures as: Irrigations, catheterization, special procedure contributing to rehabilitation, and administration of medication by any method which involves a level of complexity and skill in administration not possessed by the untrained person.
(g) "Resident" means an individual living in a nursing home.
(h) "Review organization" means any committee or organization engaging in peer review or quality assurance, including, but not limited to, a medical audit committee, a health insurance review committee, a professional health service plan review committee ororganization, a dental review committee, a physician's advisory committee, a podiatry advisory committee, a nursing advisory committee, any committee or organization established pursuant to a medical assistance program, any committee or organization established or required under state or federal statutes, rules or regulations, and any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of residents for the purposes of: (1) Evaluating and improving the quality of health care rendered; (2) reducing morbidity or mortality; or (3) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.
(i) "Sponsor" means the person or agency legally responsible for the welfare and support of a resident.
(j) "Person" means an individual and every form of organization, whether incorporated or unincorporated, including any partnership, corporation, trust, association or political subdivision of the state.
(k) "Substantial compliance" means a level of compliance with the rules such that no deficiencies exist or such that identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.
The director may define in the rules any term used herein which is not expressly defined.
In the administration of this article, the director shall have the following powers, duties and rights:
(a) To enforce rules and standards promulgated hereunder for nursing homes;
(b) To exercise as sole authority all powers relating to the issuance, suspension and revocation of licenses of nursing homes;
(c) To enforce rules promulgated hereunder governing the qualification of applicants for nursing home licenses, including, but not limited to, educational requirements, financial requirements, personal and ethical requirements;
(d) To receive and disburse federal funds and to take whatever action not contrary to law as may be proper and necessary to comply with the requirements and conditions for the receipt of such federal funds;
(e) To receive and disburse for authorized purposes any moneys appropriated to the division of health by the Legislature;
(f) To receive and disburse for purposes authorized by this article, any funds that may come to the division of health by gift, grant, donation, bequest or devise, according to the terms thereof, as well as funds derived from the division of health's operation, or otherwise;
(g) To make contracts, and to execute all instruments necessary or convenient in carrying out the director's functions and duties; and all such contracts, agreements and instrumentsshall be executed by the director;
(h) To appoint officers, agents, employees and other personnel and fix their compensation;
(i) To offer and sponsor educational and training programs for nursing homes for clinical, administrative, management and operational personnel;
(j) To undertake survey, research and planning projects and programs relating to administration and operation of nursing homes and to the health, care, treatment and service in general of such homes;
(k) To assess civil penalties for violations of facility standards, in accordance with section ten of this article;
(l) To inspect any nursing home and any records maintained therein that are necessary to determine compliance with licensure laws or medicare or medicaid certification, subject to the provisions of section ten of this article;
(m) To establish and implement procedures, including informal conferences, investigations and hearings, subject to applicable provisions of article three, chapter twenty-nine-a of this code, and to enforce compliance with the provisions of this article and with rules issued hereunder;
(n) To subpoena witnesses and documents, administer oaths and affirmations, and to examine witnesses under oath for the conduct of any investigation or hearing. Upon failure of a person without lawful excuse to obey a subpoena to give testimony and uponreasonable notice to all persons affected thereby, the director may apply to the circuit court of the county in which the hearing is to be held for an order compelling compliance;
(o) To make complaint or cause proceedings to be instituted against any person or persons for the violation of the provisions of this article or of rules issued hereunder. Such action may be taken by the director without the sanction of the prosecuting attorney of the county in which proceedings are instituted, if the officer fails or refuses to discharge his or her duty. The circuit court of the county in which the conduct has occurred or, if emergency circumstances require, the circuit court of Kanawha County shall have jurisdiction in all civil enforcement actions brought under this article and may order equitable relief without bond. In no such case may the director or any person acting under the director's direction be required to give security for costs;
(p) To delegate authority to the director's employees and agents to perform all functions of the director except the making of final decisions in adjudications;
(q) To submit an annual report to the governor, the Legislature and the public sixty days before the governor is required to submit an annual budget report to the Legislature. The report shall describe the licensing and investigatory activities of the department during the year, and the nature and status of other activities of the department, and may include comment on the acts, policies, practices or procedures of anypublic or private agency that effect the rights, health or welfare of residents of nursing homes. The annual report shall include a list of all nursing homes in the state, whether such homes are proprietary or nonproprietary; the name of the owner or owners; the total number of beds; the number of private and semiprivate rooms; the costs per diem for private residents; the number of full-time employees and their professions; recreational programs; services and programs available as well as the costs thereof; and whether or not those nursing homes listed accept medicare and medicaid residents. The report shall also contain the department's recommendations as to changes in law or policy which it deems necessary or appropriate for the protection of the rights, health or welfare of residents of nursing homes in the state;
(r) To establish a formal process for licensed facilities to file complaints about the survey process or surveyors; and
(s) To establish a committee to study and make a recommendation to the Legislature on a central reporting system for allegations of abuse.
(1) Administrative policies, including: (A) An affirmative statement of the right of access to nursing homes by members of recognized community organizations and community legal services programs whose purposes include rendering assistance without charge to residents, consistent with the right of residents to privacy; and (B) a statement of the rights and responsibilities of residents in nursing homes which prescribe, as a minimum, such a statement of residents' rights as included in the United States Department of Health and Human Services regulations, in force on the effective date of this article, governing participation of nursing homes in the Medicare and Medicaid programs pursuant to titles eighteen and nineteen of the Social Security Act;
(2) Minimum numbers of administrators, medical directors, nurses, aides and other personnel according to the occupancy of the facility;
(3) Qualifications of facility's administrators, medical directors, nurses, aides, and other personnel;
(4) Safety requirements;
(5) Sanitation requirements;
(6) Personal services to be provided;
(7) Dietary services to be provided;
(8) Medical records;
(9) Social and recreational activities to be made available;
(10) Pharmacy services;
(11) Nursing services;
(12) Medical services;
(13) Physical facility;
(14) Resident rights;
(15) Visitation privileges that:
(A) Permit immediate access to a resident, subject to the resident's right to deny or withdraw consent at any time, by immediate family or other relatives of the resident;
(B) Permit immediate access to a resident, subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident; and
(C) Permit access to other specific persons or classes of persons consistent with state and federal law.
(16) Admission, transfer and discharge rights.
Acts, 1993 Reg. Sess., Ch. 62.
Subject to the provisions of section seventeen of this article, no person may establish, operate, maintain, offer or advertise a nursing home within this state unless and until he or she obtains a valid license therefor as hereinafter provided, which license remains unsuspended, unrevoked and unexpired. No public official or employee may place any person in, or recommend that any person be placed in, or directly or indirectly cause any person to be placed in, any nursing home, as defined in section two of this article, which is being operated without a valid license from the director. The procedure for obtaining a license is as follows:
(a) The applicant shall submit an application to the director on a form to be prescribed by the director, containing such information as may be necessary to show that the applicant is in compliance with the standards for nursing homes, as established by this article and the rules lawfully promulgated hereunder. The application and any exhibits thereto shall provide the following information:
(1) The name and address of the applicant;
(2) The name, address and principal occupation: (A) Of each person who, as a stockholder or otherwise, has a proprietary interest of ten percent or more in the applicant; (B) of each officer and director of a corporate applicant; (C) of each trustee and beneficiary of an applicant which is a trust; and (D) where a corporation has a proprietary interest of twenty-five percent ormore in an applicant, the name, address and principal occupation of each officer and director of the corporation;
(3) The name and address of the owner of the premises of the nursing home or proposed nursing home, if he or she is a different person from the applicant, and in such case, the name and address: (A) Of each person who, as a stockholder or otherwise, has a proprietary interest of ten percent or more in the owner; (B) of each officer and director of a corporate applicant; (C) of each trustee and beneficiary of the owner if it is a trust; and (D) where a corporation has a proprietary interest of twenty-five percent or more in the owner, the name and address of each officer and director of the corporation;
(4) Where the applicant is the lessee or the assignee of the nursing home or the premises of the proposed nursing home, a signed copy of the lease and any assignment thereof;
(5) The name and address of the nursing home or the premises of the proposed nursing home;
(6) A description of the nursing home to be operated;
(7) The bed quota of the nursing home as determined by the health care cost review authority;
(8) (A) An organizational plan for the nursing home indicating the number of persons employed or to be employed and the positions and duties of all employees; (B) the name and address of the individual who is to serve as administrator; and (C) such evidence of compliance with applicable laws, and rules governing zoning,buildings, safety, fire prevention and sanitation as the director may require;
(9) A listing of other states in which the applicant owns, operates or manages a nursing home or long-term care facility;
(10) Such additional information as the director may require; and
(11) Assurances that the nursing home is in compliance with the provisions of article two-d of this chapter.
(b) Upon receipt and review of an application for license made pursuant to subdivision (a) of this section, and inspection of the applicant nursing home pursuant to section ten of this article, the director shall issue a license if he or she finds:
(1) That an individual applicant, and every partner, trustee, officer, director and controlling person of an applicant which is not an individual, is a person responsible and suitable to operate or to direct or participate in the operation of a nursing home by virtue of financial capacity, appropriate business or professional experience, a record of compliance with lawful orders of the department, if any, and lack of revocation of a license during the previous five years or consistent poor performance in other states;
(2) That the facility is under the supervision of an administrator who is licensed pursuant to the provisions of article twenty-five, chapter thirty of this code; and
(3) That the facility is in substantial compliance with standards established pursuant to section five of this article, andsuch other requirements for a license as may be established by rule under this article.
Any license granted by the director shall state the maximum bed capacity for which it is granted, the date the license was issued and the expiration date. Such licenses shall be issued for a period not to exceed fifteen months for nursing homes: Provided, That any license in effect for which timely application for renewal, together with payment of the proper fee has been made to the director in conformance with the provisions of this article and the rules issued thereunder, and prior to the expiration date of the license, shall continue in effect until: (A) Six months following the expiration date of the license; or (B) the date of the revocation or suspension of the license pursuant to the provisions of this article; or (C) the date of issuance of a new license, whichever date first occurs. Each license shall be issued only for the premises and persons named in the application and is not transferable or assignable: Provided, however, That in the case of the transfer of ownership of a facility with an unexpired license, the application by the proposed new owner shall be filed with the director no later than thirty days before the proposed date of transfer. Upon receipt of proof of the transfer of ownership, the application shall have the effect of a license for three months. The director shall issue or deny a license within three months of the receipt of the proof of the transfer of ownership. Every license shall be posted in a conspicuous place inthe nursing home for which it is issued so as to be accessible to and in plain view of all residents of and visitors to the nursing home.
(c) A license is renewable, conditioned upon the licensee filing timely application for the extension of the term of the license accompanied by the fee, and contingent upon evidence of compliance with the provisions of this article and rules promulgated hereunder. Any application for renewal of a license shall include a report by the licensee in such form and containing such information as shall be prescribed by the director, including the following:
(1) A balance sheet of the nursing home as of the end of its fiscal year, setting forth assets and liabilities at such date, including all capital, surplus, reserve, depreciation and similar accounts;
(2) A statement of operations of the nursing home as of the end of its fiscal year, setting forth all revenues, expenses, taxes, extraordinary items and other credits or charges; and
(3) If a nursing home is in compliance with the requirements of the health care facility financial disclosure act, as provided in article five-f, chapter sixteen of this code, it will be considered to have met the requirements established in subdivisions (1) and (2) of this subsection.
(4) A statement of any changes in the name, address, management or ownership information on file with the director. Allholders of facility licenses as of the effective date of this article shall include, in the first application for renewal filed thereafter, such information as is required for initial applicants under the provisions of subsection (a) of this section.
(d) In the case of an application for a renewal license, if all requirements of section five of this article are not met, the director may at his or her discretion issue a provisional license, provided that care given in the nursing home is adequate for resident needs and the nursing home has demonstrated improvement and evidences potential for substantial compliance within the term of the license: Provided, That a provisional license may not be issued for a period greater than six months, may not be renewed, and may not be issued to any nursing home that is a poor performer.
(e) A nonrefundable application fee in the amount of two hundred dollars for an original nursing home license shall be paid at the time application is made for the license. Direct costs of initial licensure inspections or inspections for changes in licensed bed capacity shall be borne by the applicant and shall be received by the director prior to the issuance of an initial or amended license. The license fee for renewal of a license shall be at the rate of fifteen dollars per bed per year for nursing homes, except the annual rate per bed may be assessed for licenses issued for less than fifteen months. Annually, the director may adjust the licensure fees for inflation based upon the increase in the consumer price index during the last twelve months. All suchlicense fees shall be due and payable to the director, annually, and in the manner set forth in the rules promulgated hereunder. The fee and application shall be submitted to the director who shall retain both the application and fee pending final action on the application. All fees received by the director under the provisions of this article shall be deposited in accordance with section thirteen, article one of this chapter.
(b) If the nursing home handles any money for residents within the facility, the licensee or his or her authorized representative shall either: (1) Give a bond; or (2) obtain and maintain commercial insurance with a company licensed in this state in an amount consistent with this subsection and with the surety as the director shall approve. The bond or insurance shall be upon condition that the licensee shall hold separately and in trust all residents' funds deposited with the licensee, shall administer the funds on behalf of the resident in the manner directed by the depositor, shall render a true and complete account to the depositor and the director when requested, and at least quarterly to the resident, and upon termination of the deposit, shall account for all funds received, expended, and held on hand. The licensee shall file a bond or obtain insurance in a sum at least one and twenty-five one-hundredths the average amount of funds deposited with the nursing home during the nursing home's previous fiscal year.
This insurance policy shall specifically designate the resident as the beneficiary or payee reimbursement of lost funds. Regardless of the type of coverage established by the facility, the facility shall reimburse, within thirty days, the resident for any losses directly and seek reimbursement through the bond or insurance itself. Whenever the director determines that the amount of any bond or insurance required pursuant to this subsection is insufficient to adequately protect the money of residents which is being handled, or whenever the amount of any such bond or insurance is impaired by any recovery against the bond or insurance, the director may require the licensee to file an additional bond or insurance in such amount as necessary to adequately protect the money of residents being handled.
The provisions of this subsection do not apply if the licensee handles less than thirty-five dollars per resident per month in the aggregate.
(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.
(a) The director and any duly designated employee or agent shall have the right to enter upon and into the premises of any nursing home at any time for which a license has been issued, for which an application for license has been filed with the director, or which the director has reason to believe is being operated or maintained as a nursing home without a license. If entry is refused by the owner or person in charge of the nursing home, the director may apply to the circuit court of the county in which the nursing home is located or the circuit court of Kanawha County for a warrant authorizing inspection to conduct the following inspections:
(1) An initial inspection prior to the issuance of a license pursuant to section six of this article;
(2) A license inspection for a nursing home, which shall be conducted at least once every fifteen months, if the nursing home has not applied for and received an exemption from the requirement as provided for in this section;
(3) The director, by the director's authorized employees or agents, shall conduct at least one inspection prior to issuance of a license pursuant to section six of this article, and shall conduct periodic unannounced inspections thereafter, to determine compliance by the nursing home with applicable rules promulgated thereunder. All facilities shall comply with regulations of the state fire commission. The state fire marshal, by his employees orauthorized agents, shall make all fire, safety and like inspections. The director may provide for such other inspections as the director may deem necessary to carry out the intent and purpose of this article. If after investigating a complaint, the director determines that the complaint is substantiated and that an immediate and serious threat to a consumer's health or safety exists, the director may invoke any remedies available pursuant to section eleven of this article. Any nursing home aggrieved by a determination or assessment made pursuant to this section, shall have the right to an administrative appeal as set forth in section twelve of this article;
(4) A complaint inspection based on a complaint received by the director. If, after investigation of a complaint, the director determines that the complaint is substantiated, the director may invoke any applicable remedies available pursuant to section eleven of this article.
(b) The director may grant an exemption to the extent allowable by federal law from a standard survey, only if the nursing home was found to be in substantial compliance with certification participation requirements at its previous standard survey and there have been no substantiated complaints thereafter.
(c) The director may grant an exemption from periodic license inspections if a nursing home receives accreditation by an accrediting body approved by the director and submits a complete copy of the accreditation report. The accrediting body shall identify quality of care measures that assure continued quality care of residents. The director may not grant more than one exemption in any two-year period.
(d) If a complaint is substantiated, the director has the authority to immediately remove the exemption.
(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.
(a) 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 alicensee of reduction in bed quota or a ban on new admissions shall include the terms of such order, the reasons therefor, and a date set for compliance.
(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.
(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 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 notice and copy of the complaint shall be served on such 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 alicense 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) 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 ofa 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, 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 responsible to the court and shall have such 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 appointmentand 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 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 determination within six months of the establishment of the temporary management, thetemporary 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 assessment or thirty days after receipt of the director's final order following a hearing, whichever is later. All such 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 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 rules shall expand the power of the director to the minimum extent required by federal requirements. Such 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.
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.
(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.
The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the supreme court of appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.
(b) The governor may appoint counsel for the director, who shall perform such legal services in representing the interests of residents in nursing homes in matters under the jurisdiction of the director as the governor shall direct. It shall be the duty of such counsel to appear for the residents in all cases where they are not represented by counsel. The compensation of such counsel shall be fixed by the governor.
(a) Whoever advertises, announces, establishes or maintains, or is engaged in establishing or maintaining a nursing home without a license granted under section six of this article, or who prevents, interferes with or impedes in any way the lawful enforcement of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished for the first offense by a fine of not more than $100, or by confinement in jail for a period of not more than ninety days, or by both fine and confinement, at the discretion of the court. For each subsequent offense, the fine may be increased to not more than $250, with confinement in jail for a period of not more than ninety days, or by both fine and confinement, at the discretion of the court. Each day of a continuing violation after conviction is considered a separate offense.
(b) The director may in his or her discretion bring an action to enforce compliance with this article or any rule or order hereunder whenever it appears to the director that any person has engaged in, or is engaging in, an act or practice in violation of this article or any rule or order hereunder, or whenever it appears to the director that any person has aided, abetted or caused, or is aiding, abetting or causing, such an act or practice. Upon application by the director, the circuit court of the county in which the conduct has occurred or is occurring, or if emergency circumstances occur the circuit court of Kanawha County, has jurisdiction to grant without bond a permanent or temporary injunction, decree or restraining order.
Whenever the director has refused to grant or renew a license, or has revoked a license required by law to operate or conduct a nursing home, or has ordered a person to refrain from conduct violating the rules of the director, and the person has appealed the action of the director, the court may, during pendency of the appeal, issue a restraining order or injunction upon proof that the operation of the nursing home or its failure to comply with the order of the director adversely affects the well being or safety of the residents of the nursing home. Should a person who is refused a license or the renewal of a license to operate or conduct a nursing home or whose license to operate is revoked or who has been ordered to refrain from conduct or activity which violates the rules of the director fails to appeal or should the appeal be decided favorably to the director, then the court shall issue a permanent injunction upon proof that the person is operating or conducting a nursing home without a license as required by law, or has continued to violate the rules of the director.
(c) Any nursing home that deprives a resident of any right or benefit created or established for the well-being of this resident by the terms of any contract, by any state statute or rule, or by any applicable federal statute or regulation, shall be liable to the resident for injuries suffered as a result of such deprivation. Upon a finding that a resident has been deprived of such a right or benefit, and that the resident has been injured as a result of such deprivation, and unless there is a finding that the nursing home exercised all care reasonably necessary to prevent and limit the deprivation and injury to the resident, compensatory damages shall be assessed in an amount sufficient to compensate the resident for such injury. In addition, where the deprivation of the right or benefit is found to have been willful or in reckless disregard of the lawful rights of the resident, punitive damages may be assessed. A resident may also maintain an action pursuant to this section for any other type of relief, including injunctive and declaratory relief, permitted by law. Exhaustion of any available administrative remedies is not required prior to commencement of suit under this subsection.
(d) The amount of damages recovered by a resident, in an action brought pursuant to this section, is exempt for purposes of determining initial or continuing eligibility for medical assistance under article four, chapter nine of this code, and may neither be taken into consideration nor required to be applied toward the payment or part payment of the cost of medical care or services available under that article.
(e) Any waiver by a resident or his or her legal representative of the right to commence an action under this section, whether oral or in writing, is void as contrary to public policy.
(f) The penalties and remedies provided in this section are cumulative and are in addition to all other penalties and remedies provided by law.
(g) Nothing in this section or any other section of the code shall limit the protections afforded nursing homes or their health care providers under article seven-b, chapter fifty-five of this code. Nursing homes and their health care providers shall be treated in the same manner as any other health care facility or health care provider under article seven-b, chapter fifty-five of this code. The terms "health care facility" and "health care provider" as used in this subsection shall have the same meaning as set forth in subsections (f) and (g), section two, article seven-b, chapter fifty-five of this code.
(h) The amendments to this section enacted during the 2013 Regular Session of the Legislature shall be effective July 1, 2013: Provided, That there shall be no inference, either positive or negative, to any legal action pending pursuant to this section as of July 1, 2013. The amendments to this section in 2013 are not in any way intended to modify, change, expand or contract the Medical Professional Liability Act. The proper construction of this section and the limitations and provisions of article seven-b, chapter fifty-five of this code shall be determined by principles of statutory construction.
All rules in effect on the first day of July, one thousand nine hundred ninety-five, which were adopted by the director relating to licensing nursing homes shall remain in full force and effect until altered, amended or repealed by the director.
(a) Each nursing home subject to the provisions of this article shall hold in a separate account and in trust each resident's personal funds deposited with the nursing home.
(b) No person may use or cause to be used for any purpose the personal funds of any resident admitted to any such nursing home unless consent for the use thereof has been obtained from the resident or from a committee or guardian or relative.
(c) Each nursing home shall maintain a true and complete record of all receipts for any disbursements from the personal funds account of each resident in the nursing home, including the purpose and payee of each disbursement, and shall render a true account of such record to the resident or his or her representative upon demand and upon termination of the resident's stay in the nursing home.
(d) Any person or corporation who violates any subsection of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or imprisoned in jail not more than one year, or both fined and imprisoned.
(e) Reports provided to review organizations are confidential unless inaccessibility of information interferes with the director's ability to perform his or her oversight function as mandated by federal regulations and this section.
(f) Notwithstanding subsection (b) of this section or any other provision of this code, upon the death of a resident, any funds remaining in his or her personal account shall be made payable to the person or probate jurisdiction administering the estate of said resident: Provided, That if after thirty days there has been no qualification over the decedent resident's estate, those funds are presumed abandoned and are reportable to the State Treasurer pursuant to the West Virginia Uniform Unclaimed Property Act, section one, article eight, chapter thirty-six of this code, et sequella.
(b) The facility shall document that it has notified the resident, and any person who has been given a medical power of attorney or health care surrogate over the resident, information about the option of hospice palliative care and maintain the documentation so that the director may inspect the documentation, to verify the facility has complied with this section.
(a)Notwithstanding a legislative rule or provider manual issued by the department, a person cannot be employed by a nursing home unless granted a variance by the secretary, or his or her designee, if convicted of:
(1) Abduction or kidnapping;
(2) Any violent felony crime including, but not limited to, rape, sexual assault, homicide, felonious physical assault or felonious battery;
(3) Child or adult abuse or neglect;
(4) Crimes which involve the exploitation of a child or an incapacitated adult;
(5) Felony domestic battery or domestic assault;
(6) Felony arson;
(7) Felony or misdemeanor crime against a child or incapacitated adult which causes harm;
(8) Felony drug-related offenses;
(9) Felony driving under the influence of drugs or alcohol;
(10) Hate crimes;
(11) Murder or manslaughter;
(12) Neglect or abuse by a caregiver;
(13) Pornography crimes involving children or incapacitated adults including, but not limited to, use of minors or incapacitated adults in filming sexual explicit conduct, distribution and exhibition of material depicting minors or incapacitated adults in sexually explicit conduct or sending, distributing, exhibiting, possessing, displaying or transporting material by a parent, guardian or custodian, depicting a minor or incapacitated adult engaged in sexually explicit conduct;
(14) Purchase or sale of a child;
(15) Sexual offenses including, but not limited to, incest, sexual abuse or indecent exposure;
(16) Felony or misdemeanor involving financial exploitation of a minor or elderly person; or
(17) Felony offense related to fraud, theft, embezzlement, breach of fiduciary responsibility or other financial misconduct in connection with the delivery of a health care item or service, or with respect to any act or omission in a health care program operated or financed, in whole or in part, by any federal, state or local government agency; or
(18) Any criminal offense related to the delivery of an item or service under Medicare or a state health care program.
(b) The secretary shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code, to allow persons to appeal decisions, demonstrate rehabilitation, request a review of their initial negative determinations and to implement any variance procedure as may be required by state or federal law.
(a) Every written agreement containing a waiver of a right to a trial by jury that is entered into between a nursing home and a person for the nursing care of a resident, must have as a separate and stand alone document any waiver of a right to a trial by jury.
(b) Nothing in this section may be construed to require a court of competent jurisdiction to determine that the entire agreement or any portion thereof is enforceable, unenforceable, conscionable or unconscionable.
(c) This section applies to all agreements entered into on or after January 1, 2015.