(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.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
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