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WEST virginia legislature
2024 regular session
Engrossed
Committee Substitute
for
House Bill 5248
By Delegates Summers and Tully
[Originating in the Committee on Health and Human Resources; Reported on February 1, 2024]
A BILL to amend the Code of West Virginia, 1931, by adding thereto a new article, designated §16B-22-1, §16B-22-2, §16B-22-3, §16B-22-4, §16B-22-5, §16B-22-6, §16B-22-7, §16B-22-8, §16B-22-9, §16B-22-10 and §16B-22-11; and to repeal §27-9-1 and §27-9-2 of said code; and to repeal §27-17-1, §27-17-2, §27-17-3, and §27-17-4 of said code, all relating to the regulation of behavioral health centers; providing definitions; creating licenses for residential behavioral health centers and non-residential behavioral health centers; setting license fees for residential behavioral health centers and non-residential behavioral health centers; providing for the regulation and oversight of all behavioral health centers by the Office of Health Facility Licensure and Certification; designating the necessity for a governing body and administrator and prescribing duties and responsibilities; setting certain minimum standards in any behavioral health center; setting certain minimum standards for behavioral health centers; restricting the location of specific treatment settings for behavioral health centers; allowing for variances or waivers from licensure standards; providing for inspections and inspection warrants; designating license limitations; providing a procedure for denial, suspension, or revocation of a license; allowing civil money penalties; providing for administrative review and appeal rights; and permitting the Inspector General to promulgate rules, including emergency rules.
Be it enacted by the Legislature of West Virginia:
"Abuse" means the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods and services that are necessary to attain or maintain physical, mental, and psychosocial well-being. Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain, or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse, including abuse facilitated or enabled through the use of technology. Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.
"Advocate" means a person or agency that acts on behalf of a client to establish, expand, protect, and enforce his or her human, legal, and civil rights in a client's best interest.
"Behavioral disability" means a disability of a person which: (1) is attributable to severe or persistent mental illness, emotional disorder, or chemical dependency; and (2) results in substantial functional limitations in self-direction, capacity for independent living, or economic self-sufficiency.
"Behavioral health center" means a provider, entity, or facility that provides behavioral health services, supports, or both. As used in this article and any rules promulgated pursuant to this article, behavioral health center means both residential behavioral health centers and non-residential behavioral health centers.
"Behavioral health service" means a direct service provided as an inpatient, residential, or outpatient service to an individual with mental health, addictive, behavioral, or adaptive challenges that is intended to improve or maintain functioning in the community. The service is designed to provide treatment, habilitation, or rehabilitation.
"Chief executive officer" means the individual designated by the governing body to be responsible for the provider's daily operations. The chief executive officer may also be referred to as the provider's president, executive director, or chief administrative officer. The chief executive officer may delegate requirements within this rule but will retain responsibility that the delegated requirements are met.
"Client" means an individual who receives services, supports, or both, from a behavioral health center licensed under this rule.
"Developmental disability" means a chronic disability of a person which: (1) is attributable to a mental or physical impairment or combination of mental and physical impairments; (2) is likely to continue indefinitely; (3) results in substantial functional limitations in self-direction, capacity for independent living, or economic self-sufficiency; and (4) reflects the person's need for a combination and sequence of special, interdisciplinary or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated.
"Director" means the director of the Office of Health Facility Licensure and Certification, or his or her designee.
"Forensic group home" means a facility which is owned, leased, or operated by a behavioral health center and which provides behavioral health services or supportive services and supervision to criminal offenders who have been adjudicated as incompetent to stand trial, in need of restoration, incompetent to stand trial, unable to be restored, or not guilty by reason of mental illness.
"Governing body" means a clearly identified group of persons or partnership, when applicable, which ensures accountability, exercises authority over, and has responsibility for the provider's operation and approval and review of policies and practices. The provider shall designate the governing body at the time of licensure. If an entity is a corporation with an out-of-state ownership or management structure, the provider shall identify the governing body in conjunction with the Inspector General.
"Group residential facility" means a facility which is owned, leased, or operated by a behavioral health center and which provides residential services and supervision for individuals who are developmentally disabled or behaviorally disabled and is occupied as a residence by individuals who are developmentally disabled.
"Group residential home" means a residence owned or leased by a developmentally disabled or behaviorally disabled persons for the purpose of establishing a personal residence. A behavioral health center shall not lease a residence to such persons if the behavioral health center is providing behavioral health services to those persons. A behavioral health center providing behavioral health services in a group residential home must be licensed, but the individuals with a developmental or behavioral disability that own or lease the residence do not need to be licensed.
"Inspector General" means the Inspector General of the Office of the Inspector General as described in §16-1-22 of this code, or his or her designee.
"Intermediate care facility" means a facility, or distinct part of a facility that is primarily for the diagnosis, treatment, or rehabilitation of the intellectually disabled or persons with related conditions; and provides, in a protected residential setting, ongoing evaluation, planning, 24-hour supervision, coordination, and integration of health or rehabilitative services to help each individual function at his or her greatest ability.
"Neglect" means the failure of the behavioral health center, its employees, or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.
"Non-residential behavioral health center" means a behavioral health center that does not provide behavioral health services in a residential treatment model, including, but not limited to, outpatient behavioral health centers.
"Office of Health Facility Licensure and Certification" means the West Virginia Office of Health Facility Licensure and Certification within the Office of the Inspector General.
"Owner" means any person, partnership, association, or corporation listed as the owner of a behavioral health center on the application and licensing forms required by this article.
"Residential behavioral health center" means a behavioral health center that provides behavioral health services in a residential treatment model, including, but not limited to, forensic group home, group residential facility, group residential home, intermediate care facility, crisis residential unit, detox services, or a combination thereof.
"Substantial compliance" means a level of compliance with the minimum standards set forth in this article and any applicable rules promulgated pursuant to this article so as not to impose a risk to the rights, health, and safety of a client.
"Supportive service" means a service provided exclusively to individuals with intellectual disabilities, developmental disabilities, ongoing mental health, or addictive challenged, or traumatic brain injury. This service is designed to assist the individual to live in the community in a manner that is socially inclusive, optimally independent, and self-directed while preserving his or her health, safety, and quality of life. These services are not designed to change behavior or emotional functioning to support the individual in his or her community-based settings. Supportive services may include coaching or prompting of age-appropriate living skills.
"Telehealth" means the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient's health care while the patient is at the originating site and the health care provider is at a distant sight.
"Waiver" means a formal, time-limited agreement between a designated oversight agency and the behavioral health center that suspends a rule, policy, or standard for a specific situation so long as the health, safety, welfare, and clinical treatment of the client is better served in the situation by suspension of the rule, policy, and standard than by enforcement.
(a) The Inspector General designates the director of the Office of Health Facility Licensure and Certification to enforce the provisions of this article for residential behavioral health centers, except where otherwise stated.
(b) No person, partnership, association, or corporation may operate a residential behavioral health center without first obtaining a license from the director in accordance with the provisions of this article and the rules lawfully promulgated pursuant to this article.
(c) Any person, partnership, association, or corporation desiring a license to operate a residential behavioral health center in this state shall file with the Office of Health Facility Licensure and Certification an application in such form and with such information as the director shall prescribe and furnish accompanied by an application fee.
(d) The Office of Health Facility Licensure and Certification shall inspect each residential behavioral health center and review all documentation submitted with the application. The Office of Health Facility Licensure and Certification shall issue a license if the residential behavioral health center is in substantial compliance with the provisions of this article and with the rules lawfully promulgated pursuant to this article.
(e) A license shall be issued in one of three categories:
(1) An initial 12-month license shall be issued to a residential behavioral health center establishing a new residential behavioral health center for which there is insufficient client participation to demonstrate substantial compliance with this article and with all rules promulgated pursuant to this article;
(2) A provisional license shall be issued when a residential behavioral health center seeks a renewal license and the residential behavioral health center is not in substantial compliance with this article and with all rules promulgated pursuant to this article, but does not pose a significant risk to the health, safety, welfare, or clinical treatment of a client. It shall expire not more than six months from the date of issuance, and may not be consecutively reissued; or
(3) A renewal license shall be issued when a residential behavioral health center is in substantial compliance with this article and with all rules promulgated pursuant to this article. A renewal license shall expire not more than two years from the date of issuance.
(f) At least 60 days prior to the license expiration date, an application for renewal shall be submitted by the residential behavioral health center to the director on forms furnished by the director. A license shall be renewed if the director determines that the applicant is in substantial compliance with this article and with all rules promulgated pursuant to this article.
(g) Any behavioral health center licensed prior to the effective date of this article which is a residential behavioral health center, as defined herein, shall submit a renewal application as a residential behavioral health center at least 60 days prior to the license expiration date to the director on forms furnished by the director. A license shall be renewed if the director determines that the applicant is in substantial compliance with this article and with all rules promulgated pursuant to this article.
(h) A license issued to one residential behavioral health center pursuant to this article is not transferrable or assignable. Each residential behavioral health center license may encompass multiple locations within the residential behavioral health center's designated service area.
(i) Any change of ownership of a licensed residential behavioral health center requires submission of a new application. The residential behavioral health center shall notify the director of any change in ownership within 10 days of the change of ownership and must submit a new application within the time frame prescribed by the director.
(j) Any person, partnership, association, or corporation that seeks to obtain or renew a license for a residential behavioral health center in this state must submit to the director the following information and documentation:
(1) Full operating name of the residential behavioral health center as advertised, as well as the full operating name of each location within the designated service area of the residential behavioral health center;
(2) Legal name of the residential behavioral health center as registered with the West Virginia Secretary of State;
(3) Physical address of the residential behavioral health center for the administrative office;
(4) Mailing address for the residential behavioral health center for the administrative office;
(5) Email address to be used as the primary contact for the residential behavioral health center;
(6) Federal Employer Identification Number assigned to the residential behavioral health center;
(7) All business licenses issued to the residential behavioral health center by this state, the state Tax Department, the Secretary of State, and all other applicable business entities;
(8) Brief description of all services provided by the residential behavioral health center;
(9) Description of designated service area which shall not encompass the entire state in one license;
(10) For each residential behavioral health center location:
(A) Name of location or building;
(B) Physical address;
(C) Telephone number;
(D) Ownership of the building;
(E) Type of construction, square footage, number of stories, whether sprinkled; and if all clients are capable of self-preservation;
(F) Disability served;
(G) Age range of clients served;
(H) Type of services provided and type of residential services provided; and
(I) Total number of clients served;
(11) Hours of operation for the administrative office;
(12) Legal Registered Owner Name – name of the person registered as the legal owner of the residential behavioral health center. If more than one legal owner (i.e., partnership, corporation, etc.), list each legal owner separately, indicating the percentage of ownership, for those with a proprietary interest greater than five percent;
(13) Names and addresses of officer, with titles, and members of the governing body;
(14) Administrator's full name, and a list of all current certifications or professional licenses;
(15) Name and location address of all residential and non-residential behavioral health centers owned or operated by the applicant;
(16) Notarized signature of the applicant;
(17) Check or money order for licensing fee and inspection fee; and
(18) If applicable, a copy of a valid Certificate of Need or a letter of exemption from the West Virginia Health Care Authority.
(k) Upon satisfaction that an applicant has met all of the requirements of this article, the director shall issue a license to operate a residential behavioral health center.
(l) The residential behavioral health center shall display the current license in a prominent location in each location included in its license and in clear view of all clients.
(m) The schedule of fees for a residential behavioral health center is as follows:
(1) Initial licensure fee is $250;
(2) First Renewal Licensure fee is $250;
(3) Second and any subsequent renewal licensure fee is $500; and
(4) Change of ownership licensure fee is $500.
(n) In addition to the set fee, the annual renewal fee shall be adjusted on the first day of June of each year to correspond with increases in the consumer price index. The Office of Health Facility Licensure and Certification shall post the consumer price index increases, immediately after those increases are released annually.
(o) An application for licensure is not considered complete until the applicant pays the licensing and inspection fee. The fee shall accompany the application form.
(p) License fees paid by an applicant are non-refundable.
(a) The Inspector General designates the director of the Office of Health Facility Licensure and Certification to enforce the provisions of this article for non-residential behavioral health centers, except where otherwise stated.
(b) No person, partnership, association, or corporation may operate a non-residential behavioral health center without first obtaining a license from the director in accordance with the provisions of this article and the rules lawfully promulgated pursuant to this article.
(c) Any person, partnership, association, or corporation desiring a registration to operate a non-residential behavioral health center in this state shall file with the Office Health Facility Licensure and Certification an application in such form and with such information as the director shall prescribe and furnish accompanied by an application fee.
(d) The Office of Health Facility Licensure and Certification shall inspect each non-residential behavioral health center and review all documentation submitted with the application. The Office of Health Facility Licensure and Certification shall issue a license if the non-residential behavioral health center is in substantial compliance with the provisions of this article and with the rules lawfully promulgated pursuant to this article.
(e) A license shall be issued in one of three categories:
(1) An initial 12-month license shall be issued to a non-residential behavioral health center establishing a new non-residential behavioral health center for which there is insufficient client participation to demonstrate substantial compliance with this article and with all rules and promulgated pursuant to this article;
(2) A provisional license shall be issued when a non-residential behavioral health center seeks a renewal license, and the non-residential behavioral health center is not in substantial compliance with this article and with all rules promulgated pursuant to this article, but does not pose a significant risk to the health, safety, welfare, or clinical treatment of a client. It shall expire not more than six months from the date of issuance, and may not be consecutively reissued; or
(3) A renewal license shall be issued when a non-residential behavioral health center is in substantial compliance with this article and with all rules promulgated pursuant to this article. A renewal licenses shall expire not more than two years from the date of issuance.
(f) At least 60 days prior to the license expiration date, an application for renewal shall be submitted by the non-residential behavioral health center to the director on forms furnished by the director. A license shall be renewed if the director determines that the applicant is in compliance with this article and with all rules promulgated pursuant to this article.
(g) Any behavioral health center licensed prior to the effective date of this article which is a non-residential behavioral health center, as defined herein, shall submit a renewal application as a non-residential behavioral health center at least 60 days prior to the license expiration date to the director on forms furnished by the director. A license shall be renewed if the director determines that the applicant is in substantial compliance with this article and with all rules promulgated pursuant to this article.
(h) A license issued to one non-residential behavioral health center pursuant to this article. Each non-residential behavioral health center license may encompass multiple locations within the non-residential behavioral health center’s designated service area.
(i) Any change of ownership of a licensed non-residential behavioral health center requires submission of a new application. The non-residential behavioral health center shall notify the director of any change in ownership within 10 days of the change of ownership and must submit a new application within the time frame prescribed by the director.
(j) Any person, partnership, association, or corporation that seeks to obtain or renew a license for a non-residential behavioral health center in this state must submit to the director the following information and documentation:
(1) Full operating name of the non-residential behavioral health center as advertised, as well as the full operating name of each location within the designated service area of the non-residential behavioral health center;
(2) Legal name of the non-residential behavioral health center as registered with the West Virginia Secretary of State;
(3) Physical address of the non-residential behavioral health center for the administrative office;
(4) Mailing address for the non-residential behavioral health center for the administrative office;
(5) Email address to be used as the primary contact for the non-residential behavioral health center;
(6) Federal Employer Identification Number assigned to the non-residential behavioral health center;
(7) All business licenses issued to the non-residential behavioral health center by this state, the state Tax Department, the Secretary of State, and all other applicable business entities;
(8) Brief description of all services provided by the non-residential behavioral health center;
(9) Description of designated service area which shall not encompass the entire state in one license;
(10) For each non-residential behavioral health center location;
(A) Name of location or building;
(B) Physical address;
(C) Telephone number;
(D) Ownership of the building;
(E) Disability served;
(F) Age range of clients served;
(G) Type of services provided and type of non-residential services provided;
(H) Total number of clients served; and
(I) Hours of operation;
(11) Hours of operation for the administrative office;
(12) Legal Registered Owner Name – name of the person registered as the legal owner of the non-residential behavioral health center. If more than one legal owner (i.e., partnership, corporation, etc.) list each legal owner separately, indicating the percentage of ownership, for those with a proprietary interest greater than five percent;
(13) Names and addresses of officers, with titles, and members of the governing body;
(14) Administrator's full name, and a list of all current certifications or professional licenses;
(15) Name and location address of all other residential and non-residential behavioral health centers owned or operated by the applicant;
(16) Notarized signature of the applicant;
(17) Check or money order for licensing fee and inspection fee; and
(18) If applicable, a copy of a valid Certificate of Need or a letter of exemption from the West Virginia Health Care Authority.
(k) Upon satisfaction that an applicant has met all of the requirements of this article, the director shall issue a license to operate a non-residential behavioral health center.
(l) The non-residential behavioral health center shall display the current license in a prominent location in each location included in its license and in clear view of all clients.
(m) The schedule of fees for a non-residential behavioral health center is as follows:
(1) Initial licensure fee is $250;
(2) First Renewal Licensure fee is $250;
(3) Second and any subsequent renewal licensure fee is $500; and
(4) Change of ownership licensure fee is $500.
(n) In addition to the set fee, the annual renewal fee shall be adjusted on the first day of June of each year to correspond with increases in the consumer price index. The Office of Health Facility Licensure and Certification shall post the consumer price index increases, immediately after those increases are released annually.
(o) An application for licensure is not considered complete until the applicant pays the licensing and inspection fee. The fee shall accompany the application form.
(p) License fees paid by an applicant are non-refundable.
(a) The behavioral health center shall be licensed in this state with the director, the Secretary of State, the State Tax Department, and all other applicable business or licensing entities.
(b) Each behavioral health center shall designate an administrator who will be responsible for the operation of the behavioral health center and all locations within the designated service area. Within 10 days after termination of an administrator, the behavioral health center shall notify the director of the identity of another administrator for that behavioral health center. The administrator shall be responsible for complying with all requirements related to the licensing and operation of the behavioral health center.
(c) The behavioral health center shall be eligible for, and not prohibited from, enrollment with West Virginia Medicaid and other private insurance.
(d) All persons employed by the behavioral health center shall comply with the requirements for the operation of a behavioral health center established within this article and by any rule adopted pursuant to this article.
(e) All employees of a behavioral health center shall furnish fingerprints for a state and federal criminal record check by the Criminal Identification Bureau and the Federal Bureau of Investigation. The behavioral health center shall be subject to the provisions of §16-49-1 et seq. of this code and subsequent rules promulgated thereunder.
(f) The behavioral health center shall immediately notify the director, or his or her designee, in writing of any changes to its operations that affect the behavioral health center's continued compliance with the certification and licensure requirements.
(g) A practitioner providing behavioral health services may perform certain aspects of telehealth if permitted under his or her scope of practice. A practitioner shall be in compliance with all other requirements related to providing behavioral health services by telehealth within the state of West Virginia. If a behavioral health center is practicing solely by telehealth in this state, the behavioral health center shall utilize an electronic record keeping system accessible for oversight by the Office of Health Facility Licensure and Certification and otherwise be able to comply with the inspection process remotely.
(a) A forensic group home shall not be located within one mile of a residential area; a public or private day care center; or a public or private K-12 school, learning pod, or micro-school. The director may grant a variance to a forensic group home in existence prior to March 6, 2023, if the forensic group home demonstrates that it has adequate patient population controls and that otherwise meets the requirements set forth in this rule.
(b) Behavioral health centers shall not have procedures for offering a bounty, monetary, equipment, merchandise reward, free services, or other incentive for individuals in exchange for recruitment of new clients into the behavioral health center.
(c) The director may grant a waiver or a variance from any licensure standard, or portion thereof, for the period during which the license is in effect.
(d) Requests for waivers or variances of licensure standards shall be in writing to the director and shall include:
(1) The specific section of this article or rules promulgated pursuant to this article for which a waiver or variance is sought;
(2) The rationale for requesting the waiver or variance;
(3) Documentation by the behavioral health center's administrator to the director that describes how the behavioral health center will maintain the quality of services and patient safety and welfare if the waiver or variance is granted; and
(4) The consequences of not receiving approval of the requested waiver or variance.
(e) The director, in consultation with the Inspector General, shall issue a written statement to the behavioral health center granting or denying a request for a waiver or variance of behavioral health center licensure standards only when the behavioral health center has documented and demonstrated that it complies with the intent of the particular requirement in a manner not permitted by the requirement.
(f) The behavioral health center shall maintain a file copy of all requests for waivers or variances and the approval or denial of the requests for the period during which the license is in effect.
(g) The Office of Health Facility Licensure and Certification may inspect each behavioral health center prior to a waiver or variance being granted, including a review of client records, to ensure and verify that any waiver or variance request meets the spirit and purpose of this article and the rules promulgated pursuant to this article. The Office of Health Facility Licensure and Certification may verify, by unannounced inspection, that the behavioral health center is in compliance with any waiver or variance granted by the director for the duration of such waiver or variance.
(a) The Office of Health Facility Licensure and Certification shall inspect each behavioral health center every two years, including a review of client records, to ensure that the behavioral health center complies with this article and the applicable rules.
(b) The Office of Health Facility Licensure and Certification shall perform unannounced complaint and verification inspections at behavioral health centers, including a review of client records, to ensure that the behavioral health center complies with this article and the applicable rules.
(c) Any action taken to correct a violation shall be documented in writing by the administrator, or his or her designee, of the behavioral health center and may be verified by follow-up visits by the Office of Health Facility Licensure and Certification.
(d) Notwithstanding the existence or pursuit of any other remedy, the Inspector General may, in the manner provided by law, maintain an action in the name of the state for an inspection warrant against any person, partnership, association, or corporation to allow any inspection or seizure of records in order to complete any inspection allowed by this article or the rules promulgated pursuant to this article, or to meet any other purpose of this article or the rules promulgated pursuant to this article.
(a) A behavioral health center adversely affected by a citation of a deficient practice issued pursuant to this article or any rules promulgated pursuant to this article may request the informal dispute resolution process. A behavioral health center may contest a cited deficiency as contrary to law or unwarranted by the facts, or both. A behavioral health center may choose to have the review completed by an independent review organization. The informal dispute resolution process is only available to contest a citation of a deficient practice issue.
(b) The director shall contract with the independent review organizations to conduct an independent informal dispute resolution process. The independent review organization shall be accredited by the Utilization Review Accreditation Commission.
(c) The informal dispute resolution process is not a formal evidentiary proceeding and utilizing the informal dispute resolution process does not waive the behavioral health center's right to a formal administrative hearing.
(d) The informal dispute resolution process consists of the following:
(1) No later than 10 business days following the last day of the survey or inspection, the director shall transmit to the behavioral health center a statement of deficiencies committed by the behavioral health center. Notification of the availability of the informal dispute resolution process, including the option of an independent review organization, and an explanation of the informal dispute resolution process shall be included in the transmittal;
(2) Within 10 business days of receipt of the statement of deficiencies, the behavioral health center shall return its plan of correction for the cited deficiencies to the director and may request in writing the informal dispute resolution process to refute the cited deficiencies. The behavioral health center must submit its supporting documentation and indicate its request for the informal process at the time of submission. No plan of correction is required for citations under appeal. The report shall not be release to the public until appealed citations are resolved;
(3) Within five business days of receipt of the written request for the informal dispute resolution process made by a behavioral health center, the director, dependent upon the behavioral health center's request, will refer the request to an internal team not associated with the survey event or to an independent review organization from the list of certified independent review organizations approved by the state. The director shall vary the selection of the independent review organization on a rotating basis.
(4) Within 10 business days of receipt of the written request for the informal dispute resolution process made by a behavioral health center, the informal dispute resolution conference shall be scheduled unless additional time is requested by the behavioral health center. Before the informal dispute resolution conference, the behavioral health center may submit additional information.
(5) The behavioral health center and the Office of Health Facility Licensure and Certification may not be accompanied by counsel during the informal dispute resolution conference. The manner in which the information dispute resolution conference is held is at the discretion of the behavioral health center, but is limited to:
(A) A desk review of written information submitted by the behavioral health center;
(B) A telephonic conference; or
(C) A face-to-face conference held at the behavioral health center or a mutually agreed upon location.
(6) If the independent committee determines the need for additional information, clarification, or discussion after conclusion of the informal dispute resolution conference, the director or the behavioral health center, or both, shall present the requested information.
(7) Within 10 calendar days of the informal dispute resolution conference, the review committee shall make a determination, based upon the facts and findings presented, and shall transmit a written decision containing the rationale for its determination to the director.
(8) If the director disagrees with the determination, the director may reject the determination made by the independent review organization and shall issue an order setting forth the rationale for the reversal of the independent review committee's decision to the behavioral health center within 10 business days of receiving the determination.
(9) If the director accepts the determination, the director shall issue an order affirming the independent review organization's determination within 10 business days of receiving the independent reviewer's determination.
(10) If the independent review committee determines that the original statement of deficiencies should be changed as a result of the informal dispute resolution process and the director accepts the determination, the director shall transmit a revised statement of deficiencies to the behavioral health center within 10 business days of receipt of the determination.
(11) Within 10 business days of receipt of the director's order and the revised statement of deficiencies, the behavioral health center shall submit a revised plan to correct any remaining deficiencies to the director.
(e) Under the following circumstances, the behavioral health center is responsible for certain costs of the independent informal dispute resolution review, which shall be remitted to the director within 60 days of the informal dispute resolution order;
(1) If the behavioral health center requests a face-to-face conference, the behavioral health center shall pay any costs incurred by the independent review organization that exceed the cost of a telephonic conference regardless of which party ultimately prevails.
(2) If the independent review organization's decision supports the originally written contested deficiency or adverse action taken by the director, the behavioral health center shall reimburse the director for the cost charged by the independent review organization. If the independent review organization's decision supports some of the originally written contested deficiencies, but not all of them, the independent reviewer will rule as to approximate portions of the expense of the hearing to be paid by each party.
(a) The director, in consultation with the Inspector General, may, by order, impose a ban on the admission of clients or reduce the client capacity or census of the behavioral health center, or any combination thereof, when he or she finds upon inspection of the behavioral health center that the licensee is not providing adequate care under the behavioral health center's existing client census, and that a reduction in client capacity or census 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 client census or ban on admissions shall include the terms of the order, the reasons therefor, and the date set for compliance. A reduction in client census or ban on admissions may be ordered at a specific location on a behavioral health center license or the entire license based upon violations being cited and past violations of all behavioral health center locations on a license.
(b) The director, in consultation with the Inspector General, may deny, suspend, or revoke a license issued pursuant to this article if the provisions of this article or of the rules promulgated pursuant to this article are violated. The director, in consultation with the Inspector General, may revoke a behavioral health center's license and prohibit all professionally licensed providers associated with that behavioral health center from practicing at the behavioral health center location based upon an annual, periodic, complaint, verification, or other inspection and evaluation. Any notice to an applicant or licensee of a denial, suspension, or revocation shall include the terms of denial, suspension, or revocation; the reasons therefor; and the date set for compliance. A denial, suspension, or revocation may be applied at a specific location on a behavioral health center license, or the entire license based upon violations being cited and past violations of all behavioral health center locations on a license.
(c) The notice will be sent by certified mail and electronically transmitted to the behavioral health center at the addresses where the behavioral health center location concerned is located and the electronic mail address that was provided by the behavioral health center at the time of licensing.
(d) If a license is denied or revoked as herein provided, a new application for a license shall be considered by the director if, when and after the conditions upon which the denial or revocation was based have been corrected and evidence of this fact has been furnished by the applicant or licensee. A new license shall then be granted after proper inspection, if applicable, has been made and all provisions of this article and any rules promulgated pursuant to this article have been satisfied.
(e) Upon the effective date of the denial, suspension, or revocation, the administrator of the behavioral health center shall advise, in writing, the director and the Board of Pharmacy of the disposition of all medications located on the premises of the behavioral health center. The disposition is subject to the supervision and approval of the director. Medications that are purchased or held by a behavioral health center that is not licensed may be deemed adulterated.
(f) If the license of a behavioral health center is suspended or revoked, any person named in the licensing documents of the behavioral health center, including persons owning or operating the behavioral health center, may not, as an individual or as part of a group, apply to operate another, new behavioral health center for up to five years after the date of suspension or revocation. The director, in consultation with the Inspector General, may grant a variance pursuant to §16B-22-5 of this code to the prohibition of this subsection.
(g) If the license of a behavioral health center is denied, suspended, or revoked, the behavioral health center, any owner of the behavioral health center, or lessor of the behavioral health center property shall cease to operate the premises as a behavioral health center as of the effective date of the denial, suspension, or revocation. The owner or lessor of the behavioral health center property is responsible for removing all signs and symbols identifying the premises as a behavioral health center within 30 days.
(h) The period of suspension for the license of a behavioral health center shall be prescribed by the director but may not exceed one year.
(a) Any person, partnership, association, or corporation which establishes, conducts, manages, or operates a behavioral health center without first obtaining a license as herein provided, or who commits a violation as described in this subsection may be assessed a civil money penalty by the director, in consultation with the Inspector General, in accordance with this subsection. Each day of continuing violation after conviction shall be considered a separate violation:
(1) If a behavioral health center is found to be in violation of any provision of this rule, unless otherwise noted herein, the director, in consultation with the Inspector General, may limit, suspend, or revoke the behavioral health center's license, if the licensee commits a violation which endangers the health, safety, or welfare of a client;
(2) If the behavioral health center fails to take action to correct a violation after being cited for the violation, the director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $10,000 and, in the case of an owner-operator behavioral health center, limit or revoke the behavioral health center's license;
(3) If the behavioral health center conducts practices which jeopardize the health, safety, welfare, or clinical treatment of clients when such practices clearly give rise to imminent danger or serious harm or the immediate risk of imminent danger of serious harm, the director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $10,000;
(4) If the behavioral health center conducts practices which jeopardize the health, safety, welfare, or clinical treatment of clients when such practices result in hospitalization, serious bodily injury, or death of a client, the director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $50,000;
(5) If an owner of a behavioral health center concurrently operates an unlicensed behavioral health center, the director, in consultation with the Inspector General, may impose a civil money penalty upon the owner not to exceed $5,000 per day;
(6) If the owner of a behavioral health center that requires a license under this rule fails to apply for a new license for the behavioral health center upon a change of ownership and operates the behavioral health center under new ownership, the director, in consultation with the Inspector General, may impose a civil money penalty upon the owner, not to exceed $5,000; or
(7) If an owner knowingly operates, owns, or manages an unlicensed behavioral health center that is required to be licensed pursuant to this rule; obtains a license to operate a behavioral health center through misrepresentation or fraud; or procures or attempts to procure a license for a behavioral health center for any other person by making or causing to be made any false representation, the director, in consultation with the Inspector General, may assess a civil money penalty of not more than $20,000. Any penalty may be in addition to or in lieu of any other action that may be taken by the director or any other board, court, or entity.
(b) In determining whether a civil money penalty is to be imposed and in fixing the amount of the penalty, the director shall consider the following factors:
(1) The gravity of the violation, including the probability that death or serious physical or emotional harm to a client has resulted, or could have resulted, from the behavioral health center's actions or actions of the owner or any staff employed by or associated with the behavioral health center, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated;
(2) What actions, if any, the owner or staff took to correct the violations;
(3) Whether there were any previous violations at the behavioral health center; and
(4) The financial benefits that the behavioral health center derived from committing or continuing to commit the violation.
(c) Upon finding that a registered or licensed professional has violated the provisions of this rule, the director will provide notice of the violation to the applicable professional licensing board.
(d) When any behavioral health center is issued a civil money penalty, written notice will be given to the owner or owners of the behavioral health center, stating the grounds of the civil money penalty and the date due for any civil money penalty. The notice will be sent by certified mail and electronically transmitted to the owner or owners at the addresses where the behavioral health center location concerned is located and the electronic mail address that was provided by the behavioral health center at the time of licensing.
(a) Within 10 business days of receipt of the notice required in §16B-22-8 or §16B-22-9 of this code, or both, of this article, the owner or owners may submit a request for an administrative hearing before the Board of Review or an informal meeting to address the subject of the notice;
(b) The behavioral health center and its owner or owners and the Office of Health Facility Licensure and Certification will be entitled to be represented by legal counsel at the informal meeting and at the administrative hearing at their own expense, respectively.
(c) All of the pertinent provisions of §29A-5-1 et seq., of this code shall apply to and govern any formal hearing authorized by this article and any rules promulgated pursuant thereto.
(d) If an owner fails to request a hearing within the time frame specified, he or she shall be subject to the full limitation, enforcement action, or penalty, or any combination thereof, imposed pursuant to §16B-22-8 or §16B-22-9 of this code.
(e) The filing of a request for an administrative hearing or an informal meeting does not stay or supersede the enforcement of a limitation, enforcement action, or penalty, or any combination thereof, imposed pursuant to §16B-22-8 or §16B-22-9 of this code.
(f) Any party who is dissatisfied with the decision of the Board of Review as a result of the formal hearing provided in this section may, within 30 days after receiving notice of the decision, petition the West Virginia Intermediate Court of Appeals, in term or in vacation, for judicial review of the decision.
(g) The court may affirm, modify, or reverse the decision of the Board of Review and either the applicant or the licensee, or the Inspector General may appeal from the court's decision to the West Virginia Supreme Court of Appeals.
(h) Notwithstanding the existence or pursuit of any other remedy, the Inspector General may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, or corporation to restrain or prevent the establishment, conduct, management, or operation of any behavioral health center or violation of any provision of this article or any rule lawfully promulgated thereunder without first obtaining a license in the manner herein provided.
(a) The Inspector General shall promulgate rules in accordance with the provisions of §29A-3-1 et seq. of this code, for the licensure of behavioral health centers to ensure adequate care, treatment, health, safety, welfare, and comfort of clients at behavioral health centers. These rules shall include, at a minimum:
(1) The process to be followed by applicants seeking a license, including, but not limited to, the licensing fee for residential behavioral health centers and non-residential behavioral health centers;
(2) The qualifications and supervision of licensed and non-licensed personnel at behavioral health centers and training requirements for all behavioral health center practitioners who are not regulated by another board;
(3) The provision and coordination of client care, including, but not limited to, the services and program description; admission requirements and process; assessments and intake procedures; planning for services; participation of a designated legal representative in planning for services; initial plan of service; treatment plan or treatment strategy; reviews of treatment plan or treatment strategy; critical treatment junctures; discharge planning; medication services, control, and administration; special services and populations; abuse, neglect, and critical incidents; non-critical incidents; quality assurance; injuries of unknown source; management of continued inappropriate behavior; and emergency management of potentially dangerous behavior;
(4) The management, operation, staffing, and equipping of the behavioral health center;
(5) The clinical, medical, patient, and business records kept by the behavioral health center;
(6) The procedures for inspections and for review of utilization and quality of client care;
(7) The standards and procedures for the general operation of a behavioral health center, including, but not limited to, behavioral health center operations; physical operations; physical facilities; infection control requirements; health and safety requirements; insurance, bonding, and financial management; transportation; emergency planning and response; and quality assurance;
(8) The statement of client rights and provisions related to violation of client rights and a human rights committee;
(9) The criteria used to identify a facility as residential behavioral health center and a non-residential behavioral health center;
(10) The standards, duties, and procedures to be followed by an administrator and governing body in providing supervision, direction, and control of individuals employed by or associated with a behavioral health center;
(11) Data collection, privacy, and reporting requirements;
(12) The criteria and requirements related to required services and specific functions and treatment environments of a behavioral health center;
(13) The provisions for requesting and responding to a written request for a variance or waiver;
(14) The provisions for administrative due process; suspension, revocation, or denial of a license; ban on admissions; reduction in census; and civil money penalties, and the time frames for the same; and
(15) The creation of a dual license.
(b) The Legislature finds that an emergency exists and, therefore, the Inspector General shall file emergency rules to implement the provisions of this section pursuant to the provisions of §29A-3-15 of this code.
[Repealed.]
[Repealed.]
[Repealed.]
[Repealed.]
[Repealed.]
[Repealed.]
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