COMMITTEE SUBSTITUTE
FOR
H. B.4186
(By Delegates Williams, Morgan, Ennis, Stephens,
Moye, C. Miller and Rowan)
(Originating in the Committee on the Judiciary)
[February 23, 2010]
A BILL to amend and reenact §16-1-7
of the Code of West Virginia,
1931, as amended;
to amend and reenact §30-25-1, §30-25-2,
§30-25-3, §30-25-4, §30-25-5, §30-25-6, §30-25-7, §30-25-8,
§30-25-9, §30-25-10 and §30-25-11 of said code; and to amend
said code by adding thereto five new sections, designated
§30-25-12, §30-25-13, §30-25-14, §30-25-15 and §30-25-16, all
relating to the
practice of nursing home administration;
continuing the West Virginia Nursing Home Administrators
Licensing Board
; prohibiting the practice of nursing home
administration without a license; providing other applicable
sections; providing definitions; providing for board
composition; setting forth the powers and duties of the board;
clarifying rulemaking authority; continuing a special revenue
account; establishing license requirements; providing for
licensure for persons licensed in another state; establishing
renewal requirements; providing permit requirements; requiring display of license; setting forth grounds for disciplinary
actions; allowing for specific disciplinary actions; providing
procedures for investigation of complaints; providing for
judicial review and appeals of decisions; setting forth
hearing and notice requirements; providing for civil causes of
action; providing criminal penalties and providing that a
single act is evidence of practice.
Be it enacted by the Legislature of West Virginia:
That §16-1-7
of the Code of West Virginia, 1931, as amended,
be amended and reenacted;
that §30-25-1, §30-25-2, §30-25-3,
§30-25-4, §30-25-5, §30-25-6, §30-25-7, §30-25-8, §30-25-9,
§30-25-10 and §30-25-11 of said code be amended and reenacted; and
that said code be amended by adding thereto five new sections,
designated §30-25-12, §30-25-13, §30-25-14, §30-25-15 and
§30-25-16, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-7. Duties and powers of the commissioner; service on
advisory councils, boards and commissions; authority
to designate a representative to serve in his or her
place on certain boards and commissions.
(a) The commissioner shall serve on the following business,
profession or occupation licensing boards:
(1) The West Virginia Board of Barbers and Cosmetologists;
(2) (1) The West Virginia Board of Chiropractic Examiners;
(3) (2) The West Virginia Board of Hearing Aid Dealers;
(4) (3) The West Virginia Board of Medicine;
(5) The West Virginia nursing home administrators licensing
board;
(6) The West Virginia radiologic technology board of examiners;
(7) (4) The West Virginia Board of
Registration for
Sanitarians; and
(8) (5) Any other licensing board or commission as directed by
the secretary.
(b) The commissioner shall serve on the following advisory
councils, boards and commissions:
(1) The Advisory Committee on Cancer (cancer registry);
(2) The Advisory Committee on Hemophilia;
(3) The Air Quality Board;
(4) The Appalachian States Low-level Radioactive Waste
Commission;
(5) The Attorney General of West Virginia Public Health Trust;
(6) The Breast and Cervical Cancer Screening Program Advisory
Coalition;
(7) The Child Fatality Review Team;
(8) The Clinical Laboratories Quality Assurance Act Advisory
Board;
(9) The Childhood Immunization Advisory Committee;
(10) The Early Intervention Coordinating Council;
(11) The Interagency Council on Osteoporosis;
(12) The Jail and Prison Standards Commission;
(13) The Medical Service Fund Advisory Council;
(14) The Nursing Home Licensing Advisory Council;
(15) The Sewage Advisory Board;
(16) The State Emergency Response Commission;
(17) The State Groundwater Coordinating Committee;
(18) The Sudden Infant Death Syndrome Advisory Council;
(19) The Water Development Authority;
(20) The West Virginia Commission for the Deaf and Hard of
Hearing;
(21) The West Virginia Infrastructure and Jobs Development
Council;
(22) The West Virginia Solid Waste Management Board; and
(23) Any other advisory council, board or commission as
assigned by the secretary.
(c) Notwithstanding any other provision of this code to the
contrary, the commissioner may, at his or her discretion, designate
in writing a representative to serve in his or her stead at the
meetings and in the duties of all boards and commissions
on which
the commissioner is designated as an ex officio member. The
appropriately designated representative or proxy may act with the
full power and authority of the commissioner in voting, acting upon
matters concerning the public health and welfare and any other
business that is properly the duty of any board or commission, with the representative serving as proxy for the commissioner at his or
her will and pleasure:
Provided, That the provisions of this
section do not apply to the medical licensing board, the air quality
board or any other board, commission or body on which the
commissioner is
designated by this code as chairman ex officio,
secretary ex officio or any board, commission or body on which the
commissioner is designated by this code as being that person whose
signature must appear on licenses, minutes or other documents
necessary to carry out the intents and purposes of the board,
commission or body.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 25. NURSING HOME ADMINISTRATORS.
§30-25-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to
practice nursing home administration in this state without a license
or permit issued under the provisions of this article, or advertise
or use any title or description tending to convey the impression
that they are a nursing home administrator unless the person has
been duly licensed or permitted under the provisions of this
article.
(b) A business entity may not render any service or engage in
any activity which, if rendered or engaged in by an individual,
would constitute the practice ofnursing home administration, except
through a licensee or permittee.
§30-25-2. Applicable law.
The practices licensed under the provisions of this article and
the West Virginia Nursing Home Administrators Licensing Board are
subject to article one of this chapter, the provisions of this
article, and any rules promulgated hereunder.
§30-25-3. Definitions.
As used in this article:
(a) "Applicant" means any person making application for an
original or renewal license or a temporary or emergency permit under
the provisions of this article.
(b) "Board" means the West Virginia Nursing Home Administrators
Licensing Board created by this article.
(c) "Licensee" means a nursing home administrator licensed
under this article.
(d) "Nursing home" means a nursing home as that term is defined
in subdivision (c), section two, article five-c, chapter sixteen of
this code.
(e) "Nursing home administrator" means a person who performs
or is responsible for planning, organizing, directing and
controlling a nursing home, whether or not such the person has an
ownership interest in the nursing home or shares the functions.
(f) "Practice of nursing home administration" means any service
requiring nursing home administration education, training, or
experience and applying such to planning, organizing, staffing,
directing, and controlling of the total management of a nursing home.
§30-25-4. West Virginia Nursing Home Administrators Licensing
Board.
(a) The West Virginia Nursing Home Administrators Licensing
Board is continued. On July 1, 2010, the members of the board are
removed and the Governor shall appoint a new board. The Governor
may reappoint a member currently serving on the board.
(b) The board shall consist of the following eight members:
(1)
Five members who are licensed nursing home administrators;
(2)
Two citizen members, who are not licensed under the
provisions of this article and who do not perform any services
related to the practice of the professions regulated under the
provisions of this article, for a term of three years; and
(3)
The Commissioner of the Bureau for Public Health or his or
her designee is an ex-officio nonvoting member.
(c) The term shall be for up to five years. All appointments
to the board shall be made by the Governor by and with the advice
and consent of the Senate; Provided That; The Governor shall
stagger the initial appointments to the board.
(d) Each licensed member of the board, at the time of his or
her appointment, must have held a license in this state for a period
of not less than five years immediately preceding the appointment.
(e) Each member of the board must be a resident of this state
during the appointment term.
(f) A member may not serve more than two consecutive full terms. A member may continue to serve until a successor has been
appointed and has qualified.
(g) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office is
vacant and the appointment shall be made within sixty days of the
vacancy.
(h) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(i) A member of the board immediately and automatically
forfeits membership to the board if his or her license to practice
is suspended or revoked, he or she is convicted of a felony under
the laws of any jurisdiction, or he or she becomes a nonresident of
this state.
(j) The board shall elect annually one of its members as
chairperson and one of its members as a secretary who serves at the
will of the board.
(k) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
chapter.
(l) A majority of the members of the board constitutes a
quorum.
(m) The board shall hold at least two meetings each year.
Other meetings may be held at the call of the chairperson or upon
the written request of two members, at the time and place as
designated in the call or request.
(n) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-25-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this
article, by rule, in article one of this chapter and elsewhere in
law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer
examinations;
(2) Establish requirements for licenses and permits;
(3) Establish procedures for submitting, approving and
rejecting applications for licenses and permits;
(4) Determine the qualifications of any applicant for licenses
and permits;
(5) Prepare, conduct, administer and grade examinations for
professional licenses and certificates;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the
examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the
compensation of the executive director;
(9) Maintain an office, and hire, discharge, establish the job
requirements and fix the compensation of employees, investigators and contracted employees necessary to enforce the provisions of this
article;
(10) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the
board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of
the provisions of this article;
(14) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(15) Keep accurate and complete records of its proceedings, and
certify the same as may be necessary and appropriate;
(16) Establish the continuing education requirements for
licensees;
(17) Issue, renew, combine, deny, restrict, suspend, restrict,
revoke or reinstate licenses and permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code to implement the
provisions of this article; and
(20) Take all other actions necessary and proper to effectuate
the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer examinations required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this
state; and,
(3) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions.
§30-25-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter
twenty-nine-a of this code, to implement the provisions of this
article, including:
(1) Standards and requirements for licenses and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer
examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses and
permits;
(8) Procedures to address substandard quality of care notices
from the West Virginia Office of Health Facility Licensure;
(9) A fee schedule;
(10) Procedure to publish a notice of a disciplinary hearing
against a licensee;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, restricting,
revoking, reinstating or limiting the practice of licensees and
permittees;
(13) Adoption of a standard for ethics;
(14) Requirements for inactive or revoked licenses or permits;
and
(15) Any other rules necessary to effectuate the provisions of
this article.
(b) All of the board's rules in effect on July 1, 2010, shall
remain in effect until they are amended or repealed, and references
to provisions of former enactments of this article are interpreted
to mean provisions of this article.
§30-25-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines,
received by the board shall be deposited in a separate special
revenue fund in the State Treasury designated the "
West Virginia
Nursing Home Administrators Licensing Board
Fund", which is
continued. The fund is used by the board for the administration of
this article. Except as may be provided in article one of this
chapter, the board retains the amount in the special revenue account
from year to year. No compensation or expense incurred under this
article is a charge against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this
article, shall be deposited into the General Revenue Fund of the
State Treasury.
§30-25-8. Qualifications for license; exceptions; application;
fees.
(a) To be eligible for a license to engage in the practice of
nursing home administration, the applicant must:
(1) Submit an application to the board;
(2) Be of good moral character;
(3) Obtain a baccalaureate degree.
(4) Pass a state and national examination as approved by the
board.
(5) Complete the required experience as prescribed by the
board;
(6) Successfully complete a criminal background check, through
the West Virginia State Police and the National Criminal
Investigative Center;
(7) Successfully complete a Health Integrity Protection Data
Bank check;
(8)
Not be an alcohol or drug abuser as these terms are defined
in section eleven, article one-a, chapter twenty-seven of this code:
Provided, That an applicant in an active recovery process, which
may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be
considered;
(9) Not have been convicted of a felony in any jurisdiction
within ten years preceding the date of application for license which
conviction remains unreversed; and
(10) Not have been convicted of a misdemeanor or felony in any
jurisdiction if the offense for which he or she was convicted
related to the practice of nursing home administration, which
conviction remains unreversed;
(b) A license issued by the board prior to July 1, 2010, shall
for all purposes be considered a license issued under this article:
Provided, That a person holding a license issued prior to July 1,
2010, must renew the license pursuant to the provisions of this
article.
(c) A person who holds an authorization as a nursing home
administrator issued by another state, the requirements for which
are found by the board to be at least as great as those provided in
this article may be granted a license without examination if he or
she meets all of the other requirements for licensing in this state.
§30-25-9. Temporary and Emergency Permits.
(a) The board may issue a temporary permit for a period of
ninety days, to an applicant for a reciprocity license who has
accepted employment in West Virginia, but who must wait for the board to meet to act on his or her application. The temporary
permit may be renewed at the discretion of the board.
(b) The board may issue emergency permit to a person who is
designate an acting administrator, if a licensed nursing home
administrator dies or is unable to continue due to an unexpected
cause. The board may issue the
emergency
permit to the owner,
governing body or other appropriate authority in charge of the
nursing home, if it finds the appointment will not endanger the
safety of the occupants of the nursing home. A
emergency
permit is
valid for a period determined by the board not to exceed six months
and shall not be renewed.
(c) The board shall charge a fee for the temporary permit and
emergency permit;
§30-25-10. Renewal requirements.
(a) All persons regulated by the article shall annually before
June 30, renew his or her license by completing a form prescribed
by the board and submit any other information required by the board.
(b) The board shall charge a fee for each renewal of a license
or permit and shall charge a late fee for any renewal not properly
completed and received with the appropriate fee by the board before
June 30.
(c) The board shall require as a condition for the renewal of
a license that each person complete continuing education.
(d) The board may deny an application for renewal for any
reason which would justify the denial of an original application for
a license.
(e)
A licensee desiring to cease engaging in the practice of
nursing home administration temporarily shall send a written notice
to the board. Upon receipt of the notice, the board shall place the
name of the person upon the inactive list. While his or her name
remains on this list, the person shall not be subject to the payment
of any fee and shall not engage in the practice nursing home
administration or act as nursing home administrator, as the case may
be, in this state. When the person again desires to engage in the
practice of
nursing home administration
or to act as a nursing home
administrator. The person shall apply for renewal of his or her
license; pay a fee; and complete all required continuing education
hours for every licensure year the licensee was on inactive status
to reinstate his or her license.
§30-25-11. Display of license.
(a) The board shall prescribe the form for a license and
permit, and may issue a duplicate upon payment of a fee.
(b) Any person regulated by the article shall conspicuously
display his or her license or permit at his or her principal
business location.
§30-25-12. Complaints; investigations; due process procedure; grounds for disciplinary action.
(a) The board may upon its own motion based on credible
information, and shall upon the written complaint of any person
cause an investigation to be made to determine whether grounds exist
for disciplinary action under this article or the legislative rules
of the board.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee or permittee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee or permittee has violated subsection (g) of this
section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee
or permittee has violated subsection (g) of this section or rules
promulgated pursuant to this article, the board may enter into a
consent decree or hold a hearing for the suspension or revocation of
the license or permit or the imposition of sanctions against the
licensee or permittee. Any hearing shall be held in accordance with
the provisions of this article.
(e) Any member of the board or the executive director of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations
against any person regulated by the article.
(f) Any member of the board or its executive director may sign
a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend or revoke the license or permit of,
impose probationary conditions upon or take disciplinary action
against, any licensee or permittee for any of the following reasons
once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license or permit by fraud, misrepresentation
or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct which placed the
public at risk, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or legislative rule
of the board;
(5) Having had a license or other authorization revoked or
suspended, other disciplinary action taken, or an application for
licensure or other authorization revoked or suspended by the proper
authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity
which has endangered or is likely to endanger the health, welfare or
safety of the public.
(h) For the purposes of subsection (g) of this section,
disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per
violation;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or permittee to report to the board
for periodic interviews for a specified period of time; or
(7) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-25-13. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section
eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge,
at the conclusion of a hearing he or she shall prepare a proposed
written order containing findings of fact and conclusions of law.
The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the
decision of the administrative law judge.
(d) Any member or the executive director of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e)
If, after a hearing, the board determines the licensee, or
permittee has violated any provision of this article or the board's
rules, a formal written decision shall be prepared which contains
findings of fact, conclusions of law and a specific description of
the disciplinary actions imposed
.
§30-25-14. Judicial review.
Any licensee or permittee adversely affected by a decision of
the board entered after a hearing may obtain judicial review of the
decision in accordance with section four, article five, chapter
twenty-nine-a of this code, and may appeal any ruling resulting from
judicial review in accordance with article six, chapter twenty-nine-a
of this code.
§30-25-15. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or
otherwise, the board has reason to believe that a licensee has
committed a criminal offense under this article, the board may bring
its information to the attention of an appropriate law-enforcement
official.
(b) A person violating a provision of this article is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than $100 nor more than $1,000 or confined in jail not more than six
months, or both fined and confined.
§30-25-16. Single act evidence of practice.
In any action brought or in any proceeding initiated under this
article, evidence of the commission of a single act prohibited by
this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general course
of conduct.