H. B. 3090
(By Delegates Compton and Leach)
[Introduced March 29, 2001; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact section twelve, article five-d, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section twelve, article five-h of said chapter, all relating
to administrative appeals for personal care homes and
residential board and care homes.
Be it enacted by the Legislature of West Virginia:
That section twelve, article five-d, chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section twelve, article
five-h of said chapter be amended and reenacted, all to read as
follows:
ARTICLE 5D. PERSONAL CARE HOMES.
§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
shall, upon timely written request, have the opportunity for a
hearing by the director at which he or she may
request a formal or
informal hearing with the director 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 director. An informal hearing is not a prerequisite for
requesting a formal hearing.
(b) Informal hearings shall be held within twenty business
days of the director'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 director receives a timely request
for appeal. Neither the licensee or applicant nor the director may
be represented by an attorney at the informal hearing. Within ten
business days of the conclusion of the informal hearing the
director, 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 director
shall notify the administrative hearing examiner of the request for appeal within five business days of issuing the informal hearing
order.
(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
director shall proceed in accordance with the department of health
and human resources rules of procedure for contested case hearings
and declaratory rulings and All of the pertinent provisions of
article five, chapter twenty-nine-a of this code.
shall apply to
and govern the hearing and the administrative procedures in
connection with the hearing. The licensee or applicant may also
request an informal meeting with the director before the hearing.
(d) Following
the a formal hearing the director shall make and
enter a written order either dismissing the complaint or taking
such action as is authorized in this article. The written order of
the director 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 director suspends a
personal care home's license,
it 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 director revokes
a license, the director 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 director shall be final unless vacated or modified upon
judicial review thereof in accordance with the provisions of
section thirteen of this article.
(e) In addition to all other powers granted by this chapter,
the director 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 director 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 director 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.
ARTICLE 5H. RESIDENTIAL BOARD AND CARE HOMES.
§16-5H-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
shall, upon timely written request, have the opportunity for a hearing by the director may request a formal or informal hearing
with the director or the program manager at which he or she may in
order to contest such 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 director. An informal hearing is not a pre-
requisite for requesting a formal hearing.
(b) Informal hearings shall be held within twenty business
days of the director'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 director receives a timely request
for appeal. Neither the licensee or applicant nor the director may
be represented by an attorney at the informal hearing. Within ten
business days of the conclusion of the informal hearing the
director, 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 director
shall notify the administrative hearing examiner of the request for
appeal within five business days of issuing the informal hearing
order.
(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
director shall proceed in accordance with the department of health
rules of procedure for contested case hearings and declaratory
rulings and All of the pertinent provisions of article five,
chapter twenty-nine-a of this code. shall apply to and govern such
hearings and the administrative procedures in connection with such
hearing. Such licensee or applicant may also request an informal
meeting with the director before such hearing.
(d) Following such the formal hearing the director shall make
and enter a written order either dismissing the complaint or taking
such action as is authorized in this article. The written order of
the director 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 such 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 director suspends a
residential board and care home's license, it the order shall also
specify the conditions giving rise to such 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
director revokes a license, the director may stay the effective
date of revocation by not more than ninety days upon a showing that
such delay is necessary to assure appropriate placement of residents. The order of the director shall be final unless vacated
or modified upon judicial review thereof in accordance with the
provisions of section thirteen of this article.
(b) (e) In addition to all other powers granted by this
chapter, the director 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 director 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 such order, the director 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.
NOTE: The purpose of this bill is to provide for informal and
formal procedures for personal care home and residential board and
care home applicants and licensees to protest orders of the
director or the program manager.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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