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§16-5D-1. Purpose.
(a) It is the policy of this state to encourage and promote the development and utilization of resources to ensure the effective care and treatment of persons who are dependent upon the services of others by reason of physical or mental impairment who may require limited and intermittent nursing care, including those individuals who qualify for and are receiving services coordinated by a licensed hospice. Such care and treatment requires a living environment for such persons which, to the extent practicable, will approximate a normal home environment. To this end, the guiding principle for administration of the laws of the state is that such persons shall be encouraged and assisted in securing necessary care and treatment in noninstitutional surroundings.

(b) In recognition that for many such persons effective care and treatment can only be secured from proprietary, voluntary and governmental assisted living residences, it is the policy of this state to encourage, promote and require the maintenance of assisted living residences so as to ensure protection of the rights and dignity of those using the services of assisted living residences.

(c) The provisions of this article are hereby declared to be remedial and shall be liberally construed to effectuate its purposes and intents.

§16-5D-2. Definitions.

(a) As used in this article, unless a different meaning appears from the context:

(1) "Assisted living residence" means any living facility , residence or place of accommodation, however named, available for four or more residents, 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 having personal assistance or supervision, or both, provided to any residents therein who are dependent upon the services of others by reason of physical or mental impairment and who may also require nursing care at a level that is not greater than limited and intermittent nursing care: Provided, That the care or treatment in a household, whether for compensation or 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 an assisted living residence within the meaning of this article. Nothing contained in this article applies to hospitals, as defined under section one, article five-b of this chapter; or state institutions, as defined under section three, article one, chapter twenty-five of this code or section six, article one, chapter twenty-seven of this code; or personal care homes operated by the federal government or the state; 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;

(2) "Deficiency" means a statement of the rule and the fact that compliance has not been established and the reasons therefor;

(3) "Department" means the state department of health and human resources;

(4) "Division" means the bureau for public health of the state department of health and human resources;

(5) "Limited and intermittent nursing care" means direct hands on nursing care of an individual who needs no more than two hours of nursing care per day for a period of time no longer than ninety consecutive days per episode: Provided, That such time limitations shall not apply to an individual who, after having established a residence in an assisted living residence, subsequently qualifies for and receives services coordinated by a licensed hospice and such time limitations shall not apply to home health services provided by a medicare-certified home health agency . Limited and intermittent nursing care may only be provided by or under the supervision of a registered professional nurse and in accordance with rules proposed by the secretary for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code;

(6) "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 procedures 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;

(7) "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;

(8) Personal assistance" means personal services, including, but not limited to, the following: Help in walking, bathing, dressing, feeding or getting in or out of bed, or supervision required because of the age or mental impairment of the resident;

(9) "Resident" means an individual living in an assisted living residence for the purpose of receiving personal assistance or limited and intermittent nursing services;

(10) "Secretary" means the secretary of the state department of health and human resources or his or her designee; and

(11) "Substantial compliance" means a level of compliance with the rules such that identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

(b) The secretary may define in rules any term used herein which is not expressly defined.

§16-5D-3. Powers, duties and rights of secretary.
In the administration of this article, the secretary has the following powers, duties and rights:

(a) To enforce rules and standards for assisted living residences which are adopted, promulgated, amended or modified by the secretary;

(b) To exercise as sole authority all powers relating to the issuance, suspension and revocation of licenses of assisted living residences;

(c) To enforce rules adopted, promulgated, amended or modified by the secretary governing the qualification of applicants for assisted living residences, 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 federal funds;

(e) To receive and disburse for authorized purposes any moneys appropriated for the division by the Legislature;

(f) To receive and disburse for purposes authorized by this article, any funds that may come to the division by gift, grant, donation, bequest or devise, according to the terms thereof, as well as funds derived from the division's operation or otherwise;

(g) To make contracts and to execute all instruments necessary or convenient in carrying out the secretary 's functions and duties; and all such contracts, agreements and instruments shall be executed by the secretary ;

(h) To appoint officers, agents, employees and other personnel and fix their compensation;

(i) To offer and sponsor educational and training programs for assisted living residences' administrative, management and operational personnel;

(j) To undertake survey, research and planning projects and programs relating to administration and operation of assisted living residences and to the health, care, treatment and service in general of residents of assisted living residences;

(k) To assess civil penalties for violations of assisted living residence standards in accordance with section ten of this article;

(l) To inspect any assisted living residence and any records maintained therein 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 by the secretary;

(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 upon reasonable notice to all persons affected thereby, the secretary may apply to the circuit court of the county in which the hearing is to be held or to the circuit court of Kanawha County for an order compelling compliance;

(o) To make complaint or cause proceedings to be instituted against any person for the violation of the provisions of this article or of rules issued hereunder by the secretary. Such action may be taken by the secretary without the sanction of the prosecuting attorney of the county in which proceedings are instituted if the prosecuting attorney fails or refuses to discharge his or her duty. The circuit court of Kanawha County or the circuit court of the county in which the conduct has occurred 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 secretary or any person acting under the secretary's direction be required to give security for costs;

(p) To delegate authority to the secretary's employees and agents to perform all functions of the secretary except the making of final decisions in adjudications; and

(q) To submit an annual report to the governor, the Legislature and the public. The report shall describe the assisted living residence licensing and investigatory activities of the division during the year and the nature and status of other activities of the division and may include comment on the acts, policies, practices or procedures of any public or private agency that affect the rights, health or welfare of residents of assisted living residences. The annual report shall include a list of all assisted living residences in the state and such of the following information as the secretary determines to apply: Whether the assisted living residences are proprietary or nonproprietary; the classification of each assisted living residence; 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 assisted living residences listed accept medicare and medicaid residents. The report shall also contain the division'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 assisted living residences in the state.

§16-5D-4. Administrative and inspection staff.
The secretary may, as he or she determines necessary, employ administrative employees, inspectors or other persons as may be necessary to properly carry out the provisions of this article. All employees of the division shall be members of the state civil service system. Inspectors and other employees as may be duly designated by the secretary shall act as the secretary's representatives and, under the direction of the secretary, shall enforce the provisions of this article and all duly promulgated rules of the secretary and, in the discharge of official duties, shall have the right of entry into any place maintained as an assisted living residence at any time.

§16-5D-5. Rules; minimum standards for assisted living residences.
(a) The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to carry out the purposes and intent of this article and to enable the secretary to exercise the powers and perform the duties conferred upon the secretary by this article.

(b) The secretary shall propose rules establishing minimum standards of operation of assisted living residences, including, but not limited to, the following:

(1) Administrative policies, including:

(A) An affirmative statement of the right of access to assisted living residences 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;

(2) Minimum numbers and qualifications of personnel, including management, medical and nursing, aides, orderlies and support personnel, according to the size and classification of the assisted living residence;

(3) Safety requirements;

(4) Sanitation requirements;

(5) Protective and personal services to be provided;

(6) Dietary services to be provided;

(7) Maintenance of health records;

(8) Social and recreational activities to be made available;

(9) Physical facilities;

(10) Requirements related to provision of limited and intermittent nursing;

(11) Visitation privileges governing access to a resident by immediate family or other relatives of the resident and by other persons who are visiting with the consent of the resident; and

(12) Such other categories as the secretary determines to be appropriate to ensure resident's health, safety and welfare.

(c) The secretary shall include in rules detailed standards for each of the categories of standards established pursuant to subsections (b) and (d) of this section and shall classify such standards as follows:

(1) Class I standards are standards the violation of which, as the secretary determines, would present either an imminent danger to the health, safety or welfare of any resident or a substantial probability that death or serious physical harm would result;

(2) Class II standards are standards which the secretary determines have a direct or immediate relationship to the health, safety or welfare of any resident, but which do not create imminent danger;

(3) Class III standards are standards which the secretary determines have an indirect or a potential impact on the health, safety or welfare of any resident.

(d) An assisted living residence shall attain substantial compliance with standards established pursuant to this section and such other requirements for a license as may be established by rule under this article.

§16-5D-6. License required; application; fees; duration; renewal.
(a) There shall be one assisted living residence license for each assisted living residence. Subject to the provisions of section seventeen of this article, no person may establish, operate, maintain, offer or advertise an assisted living residence within this state unless and until he or she obtains a valid license therefor as provided in this article, 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 assisted living residence, as defined in section two of this article, which is being operated without a valid license from the secretary. The licensee shall be responsible for, and shall have complete control of, the operation and premises of the assisted living residence and the personal assistance and supervision provided to the residents: Provided, That the secretary may review any leases or any contracts, subcontracts, agreements or arrangements for the provision of on-site services to the residents of an assisted living residence to ensure the proper care, safety and welfare of current or potential residents. Nothing in this article shall be construed to prevent or prohibit the ability of a resident of an assisted living residence to contract or arrange for, and to receive, privately paid nursing care or personal assistance in addition to those services provided by the licensee, subject to the consent and cooperation of the licensee and consistent with the duties and responsibilities imposed by this section.

(b) Nothing in this article shall be construed to require the licensing of landlords or property owners who are not involved in the provision of supervision, personal assistance, limited and intermittent nursing care or other on-site professional services for the residents of an assisted living residence or in the advertising, recruitment of residents, transportation of residents or other substantial and ongoing services for the operation or maintenance of the assisted living residence.

(c) The procedure for obtaining a license shall be as follows:

(1) The applicant shall submit an application to the secretary on a form to be prescribed by the secretary, containing such information as may be necessary to show that the applicant is in compliance with the standards for assisted living residences as established by this article and the rules lawfully promulgated by the secretary hereunder. The application and any exhibits thereto shall provide the following information:

(A) The name and address of the applicant;

(B) The name, address and principal occupation:

(i) Of each person who, as a stockholder or otherwise, has a proprietary interest of ten percent or more in the applicant;

(ii) Of each officer and director of a corporate applicant;

(iii) Of each trustee and beneficiary of an applicant which is a trust; and

(iv) Where a corporation has a proprietary interest of twenty-five percent or more in an applicant, the name, address and principal occupation of each officer and director of the corporation;

(C) The name and address of the owner of the premises of the assisted living residence or proposed assisted living residence, if he or she is a different person from the applicant, and in such case, the name and address:

(i) Of each person who, as a stockholder or otherwise, has a proprietary interest of ten percent or more in the owner;

(ii) Of each officer and director of a corporate applicant;

(iii) Of each trustee and beneficiary of the owner if it is a trust; and

(iv) 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;

(D) Where the applicant is the lessee or the assignee of the assisted living residence or the premises of the proposed assisted living residence, a signed copy of the lease and any assignment thereof;

(E) The name and address of the assisted living residence or the premises of the proposed assisted living residence;

(F) The proposed bed quota of the assisted living residence and the proposed bed quota of each unit thereof;

(G) An organizational plan for the assisted living residence indicating the number of persons employed or to be employed, the positions and duties of all employees;

(H) The name and address of the individual who is to serve as administrator;

(I) Such evidence of compliance with applicable laws and rules governing zoning, buildings, safety, fire prevention and sanitation as the secretary may require; and

(J) Such additional information as the secretary may require.

(d) Upon receipt and review of an application for license made pursuant to subsection (a) of this section and inspection of the applicant assisted living residence pursuant to section ten of this article, the secretary shall issue a license if he or she finds:

(1) That an individual applicant, and every partner, trustee, officer, secretary 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 an assisted living residence 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;

(2) That the assisted living residence is under the supervision of an administrator who is qualified by training and experience; or

(3) That the assisted living residence is in substantial compliance with standards established pursuant to section five of this article and such other requirements for a license as the secretary may establish by rule under this article.

(e) The secretary may deny an initial or renewal license if the information provided in an application or report is known by the applicant to be false or the applicant fails to report required information or for any other reason permitted by law or rules promulgated pursuant to this article.

(f) Any license granted by the secretary shall state the maximum bed capacity for which it is granted, the date the license was issued and the expiration date. Licenses shall be issued for a period not to exceed one year for assisted living residences: Provided, That any such license in effect for which timely application for renewal, together with payment of the proper fee has been made to the state division of health 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: (1) One year following the expiration date of the license; or (2) the date of the revocation or suspension of the license pursuant to the provisions of this article; or (3) 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 an assisted living residence with an unexpired license, the application of the new owner for a license shall have the effect of a license for a period of three months when filed with the secretary. Every license shall be posted in a conspicuous place in the assisted living residence for which it is issued so as to be accessible to and in plain view of all residents and visitors of the assisted living residence.

(g) An original license shall be 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 by the secretary hereunder; the application shall be accompanied by:

(1) The information required in paragraphs (A), (B) and (C), subdivision (1) of this subsection.

(2) A balance sheet of the assisted living residence 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;

(3) A statement of operations of the assisted living residence as of the end of its fiscal year, setting forth all revenues, expenses, taxes, extraordinary items and other credits or charges; and

(4) A statement of any changes in the name, address, management or ownership information on file with the secretary.

(h) In the case of an application for a renewal license, if all requirements of section five of this article are not met, the secretary may in his or her discretion issue a provisional license, provided that care given in the assisted living residence is adequate for resident needs and the assisted living residence has demonstrated improvement and evidences potential for substantial compliance within the term of the license: Provided, That a provisional renewal may not be issued for a period greater than one year, may not be renewed and may not be issued to any assisted living residence with uncorrected violations of any Class I standard, as defined in subsection (c), section five of this article.

(i) A nonrefundable application fee in the amount of sixty-five dollars for an original assisted living residence license shall be paid at the time application is made for the license. An average cost of all direct costs for the initial licensure for the preceding ten facilities based on the size of the facility's licensed bed capacity shall be borne by the applicant and shall be received by the secretary prior to the issuance of an initial or amended license. The license fee for renewal of a license shall be at the rate of six dollars per bed per year for assisted living residences except the annual rate per bed may be assessed for licenses issued for less than one year. The secretary may annually adjust the licensure fees for inflation based upon the consumer price index. The bed capacity for the holder of each license shall be determined by the secretary. All license fees shall be due and payable to the secretary, annually, and in the manner set forth in the rules promulgated by the secretary. The fee and application shall be submitted to the secretary who shall retain both the application and fee pending final action on the application. All fees received by the secretary under the provisions of this article shall be deposited in accordance with section thirteen, article one of this chapter.

§16-5D-7. Cost disclosure; surety for residents' funds.
(a) Each assisted living residence shall disclose in writing to all prospective residents a complete and accurate list of all costs which may be incurred by them. Residents are not liable for any cost not so disclosed.

(b) If the assisted living residence handles any money for residents within the assisted living residence, the licensee or his or her authorized representative shall give a bond in an amount consistent with this subsection and with such surety as the secretary shall approve. The bond 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 secretary 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 in a sum to be fixed by the secretary based upon the magnitude of the operations of the applicant, but which sum may not be less than two thousand five hundred dollars.

(c) Every person injured as a result of any improper or unlawful handling of the money of a resident of an assisted living residence may bring an action in a proper court on the bond required to be posted by the licensee pursuant to this subsection for the amount of damage suffered as a result thereof to the extent covered by the bond. Whenever the secretary determines that the amount of any bond which is filed pursuant to this subsection is insufficient to adequately protect the money of residents which is being handled or whenever the amount of any bond is impaired by any recovery against the bond, the secretary may require the licensee to file an additional bond in such amount as necessary to adequately protect the money of residents being handled.

(d) The provisions of subsection (b) of this section do not apply if the licensee handles less than twenty-five dollars per resident and less than five hundred dollars for all residents in any month.

§16-5D-8. Investigation of complaints.
(a) The secretary shall establish by rule procedures for prompt investigation of all complaints of alleged violations by assisted living residences of applicable requirements of state law or rules, except for such complaints that the secretary 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 of any other person so named in the complaint and for promptly informing the complainant and the assisted living residence involved of the results of the investigation.

(b) If, after its investigation, the secretary determines that the complaint has merit, the secretary shall take appropriate disciplinary action and shall advise any injured party of the possibility of a civil remedy under this article.

(c) No assisted living residence may discharge or in any manner discriminate against any resident or employee for the reason that the resident or employee has filed a complaint or participated in any proceeding specified in this article. Violation of this prohibition by any assisted living residence constitutes ground for the suspension or revocation of the license of the assisted living residence as provided in section eleven of this article. Any type of discriminatory treatment of a resident or employee by whom, or upon whose behalf, a complaint has been submitted to the secretary , or any proceeding instituted under this article, within one hundred twenty days of the filing of the complaint or the institution of the action, shall raise a rebuttable presumption that the action was taken by the assisted living residence in retaliation for the complaint or action.

§16-5D-9. Inspections.
(a) The secretary and any duly designated employee or agent thereof shall have the right to enter upon and into the premises of any assisted living residence at any time for which a license has been issued, for which an application for license has been filed with the secretary, or which the secretary has reason to believe is being operated or maintained as an assisted living residence without a license. If entry is refused by the owner or person in charge of the assisted living residence, the secretary shall apply to the circuit court of the county in which the assisted living residence is located or the circuit court of Kanawha County for an order authorizing inspection and the court shall issue an appropriate order if it finds good cause.

(b) The secretary, by the secretary'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 assisted living residence with applicable statutes and rules promulgated thereunder. All assisted living residences shall comply with rules of the state fire commission. The state fire marshal, by his or her employees or authorized agents, shall make all fire, safety and like inspections. The secretary may provide for such other inspections as the secretary may deem necessary to carry out the intent and purpose of this article. If after investigating a complaint the secretary determines that the complaint is substantiated and that an immediate and serious threat to a resident's health or safety exists, the secretary may invoke any remedies available pursuant to section eleven of this article. Any assisted living residence 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.

§16-5D-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 secretary and shall list all deficiencies in the assisted living residence's compliance with the provisions of this article and the rules adopted by the secretary hereunder. The secretary shall send a copy of the report to the assisted living residence by certified mail, return receipt requested, and shall specify a time within which the assisted living residence shall submit a plan for correction of deficiencies, which plan shall be approved, rejected or modified by the secretary. The surveyors shall allow audio taping of the exit conference for licensure inspections with all costs directly associated with the taping to be paid by the assisted living residence provided that an original tape is provided to surveyors at the end of taping.

(b) Upon an assisted living residence's failure to submit a plan of correction which is approved by the secretary, or to correct any deficiency within the time specified in an approved plan of correction, the secretary may assess civil penalties as hereinafter provided or may initiate any other legal or disciplinary action as provided by this article.

(c) Nothing in this section may be construed to prohibit the secretary 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 secretary, the violation of the rule jeopardizes the health or safety of residents or where the violation of the rule is the second or subsequent violation occurring during a period of twelve full months.

(d) Civil penalties assessed against assisted living residences shall be classified according to the nature of the violation as defined in subsection (c), section five of this article and rules promulgated thereunder by the secretary, as follows: For each violation of a Class I standard, a civil penalty of not less than fifty nor more than five hundred dollars shall be imposed; for each violation of a Class II standard, a civil penalty of not less than twenty-five nor more than fifty dollars shall be imposed; for each violation of a Class III standard, a civil penalty of not less than ten nor more than twenty-five dollars shall be imposed. Each day a violation continues, after the date of citation, shall constitute a separate violation. The date of citation is the date the facility receives the written statement of deficiencies.

(e) The secretary shall assess a civil penalty not to exceed two thousand dollars against any individual who notifies, or causes to be notified, an assisted living residence of the time or date on which an inspection is scheduled to be conducted under this article.

(f) If the secretary assesses a penalty under this section, the secretary shall cause delivery of notice of the penalty by personal service or by certified mail. The notice shall state the amount of the penalty, the action or circumstance for which the penalty is assessed, the requirement that the action or circumstance violates and the basis upon which the secretary assessed the penalty and selected the amount of the penalty.

(g) The secretary 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 the assessment or which has been affirmed under the provisions of that section and not appealed within thirty days of receipt of the secretary'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 secretary only for the protection of the health or property of residents of assisted living residences operated within the state that the secretary finds to be deficient, including payment for the costs of relocation of residents to other facilities, operation of an assisted living residence pending correction of deficiencies or closure and reimbursement of residents for personal funds lost.

(h) The opportunity for a hearing on an action taken under this section shall be as provided in section twelve of this article. In addition to any other rights of appeal conferred upon an assisted living residence pursuant to this section, an assisted living residence shall have the right to request a hearing and seek judicial review pursuant to sections twelve and thirteen of this article to contest the citing by the secretary of a deficiency on an inspection report, irrespective of whether the deficiency results in the imposition of a civil penalty.

§16-5D-11. License limitation, suspension, revocation; ban on admissions; continuation of disciplinary proceedings; closure, transfer of residents, appointment of temporary management; assessment of interest; collection of assessments; hearings.
(a) The secretary shall, by order, impose a ban on the admission of residents or reduce the bed quota of the assisted living residence, or any combination thereof, where he or she finds upon inspection of the assisted living residence that the licensee is not providing adequate care under the assisted living residence's existing bed quota and that reduction in quota or imposition of a ban on admissions, or any combination thereof, would place the licensee in a position to render adequate care. Any notice to a licensee of reduction in quota or ban on new admissions shall include the terms of the order, the reasons therefor and the date set for compliance.

(b) The secretary may suspend or revoke a license issued under this article 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, the secretary shall file an administrative complaint stating facts constituting a ground or grounds for the limitation, suspension or revocation. Upon the filing of the administrative complaint, the secretary shall notify the licensee in writing of the filing of the administrative complaint, enclosing a copy of the complaint, and shall advise the licensee of the availability of a hearing pursuant to section twelve of this article. The notice and copy of the administrative complaint shall be served on the licensee by certified mail, return receipt requested.

(d) The suspension, expiration, forfeiture or cancellation by operation of law or order of the secretary of a license issued by the secretary or the withdrawal of an application for a license after it has been filed with the secretary, may not deprive the secretary of the secretary's authority to institute or continue a disciplinary proceeding or a proceeding for the denial of a license application against the licensee or applicant upon any ground provided by law or to enter an order denying the license application or suspending or revoking the license or otherwise taking disciplinary action on any such ground.

(e) In addition to other remedies provided in this article, upon petition from the secretary, the circuit court of the county in which the conduct has occurred or is occurring, or the circuit court of Kanawha County, may determine that an assisted living residence's deficiencies under this article constitute an emergency immediately jeopardizing the health, safety, welfare or rights of its residents and issue an order to:

(1) Close the assisted living residence;

(2) Transfer residents in the assisted living residence to other facilities; or

(3) Appoint temporary management to oversee the operation of the assisted living residence and to assure the health, safety, welfare and rights of the assisted living residence's residents where there is a need for temporary management while:

(A) There is an orderly closure of the assisted living residence; or

(B) Improvements are made in order to bring the assisted living residence into compliance with all the applicable requirements of this article.

(f) If the secretary petitions a circuit court for the closure of an assisted living residence, the transfer of residents or the appointment of a temporary management, the circuit court shall hold a hearing no later than seven days thereafter, at which time the secretary and the licensee or operator of the assisted living residence may participate and present evidence.

(g) A circuit court may divest the licensee or operator of possession and control of an assisted living residence 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 assisted living residence, including, but not limited to, the replacement of management and staff, the hiring of consultants, the making of any necessary expenditures to close the assisted living residence or to repair or improve the assisted living residence so as to return it to compliance with applicable requirements and the power to receive, conserve and expend funds, including payments on behalf of the licensee or operator of the assisted living residence. Priority shall be given to expenditures for current direct resident care or the transfer of residents.

(h) The person charged with temporary management: (i) Shall be an officer of the court; (ii) shall be paid by the licensee; (iii) is not liable for conditions at the assisted living residence which existed or originated prior to his or her appointment; (iv) 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 assisted living residence during his or her temporary management.

(i) No person may impede the operation of temporary management. There shall be an automatic stay for a ninety-day period subsequent to the establishment of temporary management of any action that would interfere with the functioning of the assisted living residence, including, but not limited to, cancellation of insurance policies, termination of utility services, attachments to working capital accounts, foreclosures, evictions and repossessions of equipment used in the assisted living residence.

(j) A temporary management established for the purpose of making improvements in order to bring the assisted living residence into compliance with applicable requirements may not be terminated until the court has determined that the assisted living residence 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, the temporary management terminates by operation of law at that time and the assisted living residence 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 assisted living residence.

(k) 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 the assessment or thirty days after receipt of the secretary's final order following a hearing, whichever is later. All assessments against an assisted living residence that are unpaid shall be added to the assisted living residence's licensure fee and may be filed as a lien against the property of the licensee or operator of the assisted living residence. Funds received from assessments shall be deposited as funds received as provided in section ten of this article.

(l) The secretary shall have the power to promulgate emergency rules that expand the power of the secretary 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 secretary to the minimum extent required by federal requirements. The rules are subject to the provisions of article three, chapter twenty-nine-a of this code.

(m) The opportunity for a hearing on an action by the secretary taken under this section shall be as provided in section twelve of this article.

§16-5D-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 a formal or informal hearing with the secretary or program manager in order to contest the order as contrary to law or unwarranted by the facts or both. If the contested matter is not resolved at the informal hearing, the licensee or applicant may request a formal hearing before the secretary . An informal hearing is not a prerequisite for requesting a formal hearing.

(b) Informal hearings shall be held within twenty business days of the secretary's receipt of timely request for appeal unless the licensee or applicant consents to a postponement or continuance. In no event may the informal hearing occur more than thirty business days after the secretary receives a timely request for appeal. Neither the licensee or applicant nor the secretary may be represented by an attorney at the informal hearing. Within ten business days of the conclusion of the informal hearing, the secretary , program manager or designee shall issue an informal hearing order, including the basis for the decision. If the order is not favorable to the licensee or applicant, the licensee or applicant may request an appeal and a formal hearing. The secretary shall notify the administrative hearing examiner of the request for appeal within five business days of receiving the request for an appeal and a formal hearing.

(c) If the applicant or licensee requests a formal hearing without a prior informal hearing or if an applicant or licensee appeals the order issued as a result of the informal hearing, the secretary shall proceed in accordance with the department's rules of procedure for contested case hearings and declaratory rulings and the pertinent provisions of article five, chapter twenty-nine-a of this code.

(d) Following a formal hearing, the secretary shall make and enter a written order either dismissing the complaint or taking other action as is authorized in this article. The written order of the secretary shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code and a copy of the order and accompanying findings and conclusions shall be served upon the licensee and his or her attorney of record, if any, by certified mail, return receipt requested. If the secretary suspends an assisted living residence's license, the order shall also specify the conditions giving rise to the suspension to be corrected by the licensee during the period of suspension in order to entitle the licensee to reinstatement of the license. If the secretary revokes a license, the secretary may stay the effective date of revocation by not more than ninety days upon a showing that the delay is necessary to assure appropriate placement of residents. The order of the secretary shall be final unless vacated or modified upon judicial review of the order in accordance with the provisions of section thirteen of this article.

(e) In addition to all other powers granted by this chapter, the secretary may hold the case under advisement and make a recommendation as to requirements to be met by the licensee in order to avoid either suspension or revocation. In such a case, the secretary shall enter an order accordingly and so notify the licensee and his or her attorney of record, if any, by certified mail, return receipt requested. If the licensee meets the requirements of the order, the secretary shall enter an order showing satisfactory compliance and dismissing the complaint and shall so notify the licensee and the licensee's attorney of record, if any, by certified mail, return receipt requested.

§16-5D-13. Judicial review.
(a) Any licensee adversely affected by an order of the secretary rendered after a hearing held in accordance with the provisions of section twelve of this article is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern with like effect as if the provisions of said section were set forth in extenso in this section.

(b) 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.

§16-5D-14. Legal counsel and services for the secretary.
(a) Legal counsel and services for the secretary in all administrative hearings and all proceedings in any circuit court and the supreme court of appeals shall be provided by the attorney general, his or her assistants or an attorney employed by the secretary in proceedings in any circuit court by the prosecuting attorney of the county as well, all without additional compensation.

(b) The governor may appoint counsel for the secretary who shall perform such legal services in representing the interests of residents in assisted living residences in matters under the jurisdiction of the secretary 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.

§16-5D-15. Unlawful acts; penalties; injunctions; private right of action.
(a) Whoever advertises, announces, establishes or maintains or is engaged in establishing or maintaining an assisted living residence 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 shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished for the first offense by a fine of not more than one hundred dollars or by imprisonment in jail for a period of not more than ninety days, or by both such fine and imprisonment, at the discretion of the court. For each subsequent offense, the fine may be increased to not more than two hundred fifty dollars, with imprisonment in jail for a period of not more than ninety days, or both such fine and imprisonment at the discretion of the court. Each day of a continuing violation after conviction shall be considered a separate offense.

(b) The secretary 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 secretary 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 secretary that any person has aided, abetted or caused or is aiding, abetting or causing such an act or practice. Upon application by the secretary, the circuit court of the county in which the conduct has occurred or is occurring shall have jurisdiction to grant without bond a permanent or temporary injunction, decree or restraining order.

(c) Whenever the secretary refuses to grant or renew a license or revokes a license required by law to operate or conduct an assisted living residence or orders a person to refrain from conduct violating the rules of the secretary and the person deeming himself aggrieved by the refusal, revocation or order appeals the action of the secretary , the court may, during pendency of the appeal, issue a restraining order or injunction upon proof that the operation of the assisted living residence or its failure to comply with the order of the secretary adversely affects the well-being or safety of the residents of the assisted living residence. Should a person who is refused a license or the renewal of a license to operate or conduct an assisted living residence or whose license to operate is revoked or who has been ordered to refrain from conduct or activity which violates the rules of the secretary, fail to appeal or should such appeal be decided favorably to the secretary , then the court shall issue a permanent injunction upon proof that the person is operating or conducting an assisted living residence without a license as required by law or has continued to violate the rules of the secretary.

(d) Any assisted living residence that deprives a resident of any right or benefit created or established for the well-being of the 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 the 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 the deprivation and unless there is a finding that the assisted living residence 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 the injury. In addition, where the deprivation of any 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 may not be required prior to commencement of suit hereunder.

(e) The amount of damages recovered by a resident, in an action brought pursuant to this section, are 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 said article.

(f) 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, shall be null and void as contrary to public policy.

(g) The penalties and remedies provided in this section are cumulative and shall be in addition to all other penalties and remedies provided by law.

§16-5D-16. Availability of reports and records.
The secretary shall make available for public inspection and at a nominal cost provide copies of all inspections and other reports of assisted living residences filed with or issued by the secretary. Nothing contained in this section may be construed or deemed to allow the public disclosure of confidential medical, social, personal or financial records of any resident. The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as may be necessary to give effect to the provisions of this section and to preserve the confidentiality of medical, social, personal or financial records of residents.

§16-5D-17. Licenses and rules in force.
(a) All licenses for personal care homes and residential board and care homes which are in force on the first day of July, two thousand three, shall continue in full force and effect during the period for which issued unless sooner revoked as provided in this article.

(b) All rules in effect on the first day of July, one thousand nine hundred ninety-seven, which were adopted by the secretary relating to licensing personal care homes and residential board and care homes shall remain in full force and effect until altered, amended or repealed by the secretary.

(c) Notwithstanding any other provisions of this article, the secretary shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code by the first date of September, two thousand three, to implement this program.

§16-5D-18. Separate accounts for residents' personal funds; consent for use; records; penalties.
(a) Each assisted living residence subject to the provisions of this article shall hold in a separate account and in trust each resident's personal funds deposited with the assisted living residence.

(b) No person may use or cause to be used for any purpose the personal funds of any resident admitted to any assisted living residence unless consent for the use thereof has been obtained from the resident or from a committee or guardian or relative.

(c) Each assisted living residence shall maintain a true and complete record of all receipts for any disbursements from the personal funds account of each resident in the assisted living residence, including the purpose and payee of each disbursement, and shall render a true account of the record to the resident or his or her representative upon demand and upon termination of the resident's stay in the assisted living residence.

(d) Any person or corporation who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned in jail not more than one year, or both fined and imprisoned.

Note: WV Code updated with legislation passed through the 2012 1st Special Session