H. B. 4385
(By Delegates Hatfield, Coleman, Manchin,
R. M. Thompson, Faircloth, Hubbard and Susman)
[Introduced February 4, 2002; referred to the
Committee on Government Organization then Finance.]
A BILL to amend and reenact sections ten and eleven, article
five-c, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to further amend
said article by adding thereto a new section, designated
section five-a; and to amend and reenact sections one and
eight, article twenty-five, chapter thirty of said code, all
relating to the operation of nursing homes; requiring
employment of director of nursing and nursing home
administrator; allowing provision of technical assistance to
nursing homes; requiring ban on new admissions to nursing home
where licensee is not providing adequate staff or training for
its nursing staff; allowing appointment of temporary
management for a nursing home that is a poor performer; and providing for the suspension or revocation of nursing home
administrator's license under certain circumstances.
Be it enacted by the Legislature of West Virginia:
That sections ten and eleven, article five-c, chapter sixteen
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section five-a;
and that sections one and eight, article twenty-five, chapter
thirty of said code be amended and reenacted, all to read as
follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5C. NURSING HOMES.
§16-5C-5a. Required personnel; director of nursing; nursing home
administrator.
(a) Each nursing home shall employ a:
(1) Director of nursing who:
(A) Is a registered professional nurse; and
(B) Serves on a full-time basis, and on duty at the nursing
home at least five days a week, eight hours a day during the day
shift; and
(2) Nursing home administrator licensed under the provisions
of article twenty-five, chapter thirty of this code, who, on a monthly basis, is on duty at the nursing home an average of at
least thirty hours a week.
(b) The director of nursing and the administrator may not be
the same individual.
§16-5C-10. Reports of inspections; plans of correction; assessment
of penalties and use of funds derived therefrom;
hearings.
(a) Reports of all inspections made pursuant to section nine
of this article shall be in writing and filed with the director,
and shall list all deficiencies in the nursing home's compliance
with the provisions of this article and the rules adopted
hereunder
under this article. The director shall send a copy of
such the
report to the nursing home and shall specify a time within which
the nursing home shall submit a plan for correction of
such the
deficiencies. The plan shall be approved, rejected or modified by
the director. 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
prohibits 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 homes
shall may
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 are 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 The 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 The 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 the penalty by personal service or by certified mail.
Said 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 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 the 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
or technical assistance to facilities; (3)
the costs arising from the relocation of residents to other nursing
homes when no other funds are available; and (4) in an emergency
situation in which there are no other funds available, the
operation of a facility pending correction of deficiencies or
closure.
(k) The opportunity for a hearing on an action taken under
this section shall be as provided in section twelve of this
article.
§16-5C-11. License limitation, suspension, revocation;
continuation of disciplinary proceedings;
closure, transfer of residents, appointment of
temporary management; assessment of interest;
collection of assessments; promulgation of rules
to conform with federal requirements; hearings.
(a)
(1) 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 a
licensee of reduction in bed quota or a ban on new admissions shall
include the terms of
such the order, the reasons
therefor for the
order and a date set for compliance.
(2) The director shall impose a ban on new admissions where he
or she finds, upon inspection of the nursing home that the licensee
is not providing adequate staff or training to its nursing staff
pursuant to state rules.
(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 to this article.
(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 the 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 The notice and copy of the complaint shall be served
on
such the 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 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) If the director finds upon inspection of the nursing home
that it is a poor performer, as defined in the state rules, in
three surveys within a two-year period, the director shall file a
petition with the applicable circuit court to appoint temporary
management. 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, are
likely to result in continuing actual harm to its residents and
issue an order to 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 while 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.
(e) (f) 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 of
a 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 after the petition is filed 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 is responsible to
the court and
shall have such has 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 appointment
and 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 The 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 the determination within six
months of the establishment of the temporary management, the
temporary 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 the assessment or thirty days after receipt of the director's
final order following a hearing, whichever is later. All
such the
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 the 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 the rules shall expand the power
of the director to the minimum extent required by federal
requirements.
Such The 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.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 25. NURSING HOME ADMINISTRATORS.
§30-25-1. Definitions.
As used in this article, unless a different meaning appears
from the context:
(1) "Administrator of record" means the administrator
responsible at the facility at the time of the deficient practice,
if the administrator has been at the facility for more than one
month.
(2) "Board" means the West Virginia nursing home
administrators licensing board created by this article.
(1) (3) The term "Nursing home" means a nursing home as that
term is defined in subdivision (c) section two, article five-c,
chapter sixteen of this code.
(2) The term (4) "Nursing home administrator" means a
professional who is an individual responsible for planning,
organizing, directing and controlling a nursing home, or who in
fact performs such the functions, whether or not such the
individual has an ownership interest in the nursing home and
whether or not such the functions are shared with one or more other
persons.
(3) The term "board" shall mean the West Virginia nursing home
administrators licensing board created by this article.
(4) The term (5) "Person" or "applicant" shall mean means an
individual.
(6) "Poor performance inspection" means an inspection of a
nursing home conducted by the department of health and human
resources which finds the facility has deficiencies that caused
actual harm to its residents, or had the widespread potential for
actual harm.
(7) "Probationary license" means a license issued after the
holder has been the administrator at a single facility for two
consecutive poor performance inspections. The probationary license
must be posted in a public place at the facility in which the
holder is employed as an administrator and shall note that the
deficiencies that led to the probationary license are available
from the West Virginia nursing home licensing board. A probationary
license remains in effect for five years.
§30-25-8. Suspension or revocation of license or emergency permit.
(a) The board may at any time upon its own motion and shall,
upon the verified written complaint of any person, conduct an
investigation to determine whether there are any grounds for the
suspension or revocation of a license or emergency permit issued under the provisions of this article.
(b) The board shall suspend or revoke any license or emergency
permit when it finds the holder thereof of the license has:
(1) Obtained a license or emergency permit by means of fraud
or deceit; or
(2) Failed or refused to comply with the provisions of this
article, article five-c, chapter sixteen or any reasonable rule and
regulation promulgated by the board or any order or final decision
of the board.
(c) The board shall also suspend or revoke any license or
emergency permit if it finds the existence of any ground which
would justify the denial of an application for such license or
permit if application were then being made for it.
(d) If the board determines that a holder of a license has
been the administrator of record at a single facility that has had
two consecutive poor performance inspections, the board shall issue
the holder a probationary license. If an administrator of record
with a probationary license has two consecutive poor performance
inspections at a single facility, or has a total of three poor
performance inspections in a consecutive four-year period within a
single facility or at multiple facilities, the board shall suspend
the holder's license for a period of not less than six months. If an administrator of record who has a license that bas been
suspended within the last five years has two consecutive poor
performance inspections at a single facility, or has a total of two
poor performance inspections in a three-year period within a single
facility or at multiple facilities, the board shall revoke the
holder?s license for a period of not less than five years.
NOTE: The purpose of this bill is to provide enhanced
enforcement mechanisms to assist in ensuring that nursing homes are
providing adequate care for their residents.
§16-5C-5a is new; therefore, strike-throughs and underscoring
have been omitted.
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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