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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B.4186
(By Delegates Williams, Morgan, Ennis, Stephens,
Moye, C. Miller and Rowan)
[Passed March 13, 2010; in effect ninety days from passage.]
AN ACT
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 the Code of West Virginia, as amended, be
amended and reenacted; and that said code be amended by adding
thereto seven new sections, designated §30-25-12, §30-25-13,
§30-25-14, §30-25-15, §30-25-16, §30-25-
17 and §30-25-
18
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
§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
the Code of West Virginia, as amended, be amended and reenacted;
and that said code be amended by adding thereto seven new sections,
designated §30-25-12, §30-25-13, §30-25-14, §30-25-15, §30-25-16,
§30-25-
17 and §30-25-
18, all to read as follows:
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 of nursing home administration,
except through a licensee or permittee.
§30-25-2. Applicable law.
The practice licensed under the provisions of this article and
the West Virginia Nursing Home Administrators Licensing Board is
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:
(1) "Applicant" means any person making application for an
original or renewal license or a temporary or emergency permit
under the provisions of this article.
(2) "Board" means the West Virginia Nursing Home
Administrators Licensing Board created by this article.
(3) "License" means a license to practice nursing home
administration under the provisions of this article.
(4) "Licensee" means a nursing home administrator licensed
under this article.
(5) "Nursing home" means a nursing home as that term is
defined in subdivision (c), section two, article five-c, chapter
sixteen of this code.
(6) "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.
(7) "Permit" means a temporary permit or emergency permit
issued under the provisions of this article.
(8) "Permittee" means any person holding a permit issued
pursuant to the provisions of this article.
(9) "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 terminates on June 30, 2010. The terms of the members of the
board serving on June 1, 2010, terminate on June 30, 2010.
(b) Prior to July 1, 2010, the Governor shall appoint, by and
with advice and consent of the Senate:
(1) Two persons who are licensed nursing home administrators,
each for a term of five years;
(2) One person who is licensed as a nursing home administrator
for a term of four years;
(3) One person who is licensed as a nursing home administrator
for a term of three years;
(4) One person who is licensed as a nursing home administrator for a term of two years; and
(5) 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 profession regulated under the
provisions of this article, one for a term of four years, and one
for a term of three years.
(c) After the initial appointment,
the term shall be for five
years. All appointments to the board shall be made by the Governor
by and with the advice and consent of the Senate.
(d) Commencing July 1, 2010, the board is created and shall
consist of the following seven voting members and one ex-officio
nonvoting member:
(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.
(e) 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.
(f) Each member of the board must be a resident of this state
during the appointment term.
(g) 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.
(h) 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.
(i) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(j) 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.
(k) The board shall elect annually one of its members as a
chairperson and one of its members as a secretary who serve at the
will of the board.
(l) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
chapter.
(m) A majority of the members of the board constitutes a
quorum.
(n) 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.
(o) 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
licenses;
(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;
(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; and
(11) Has fulfilled any other requirement specified by the
board.
(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.
§30-28-9. License to practice nursing home administration from
another jurisdiction.
The board may issue a license to practice to an applicant of
good moral character who holds a valid license or other
authorization to practice nursing home administration from another
state, if the applicant:
(1) Holds a license or other authorization to practice in
another state which was granted after the completion of educational
requirements substantially equivalent to those required in this state and passed examinations that are substantially equivalent to
the examinations required in this state;
(2) Does not have charges pending against his or her license
or other authorization to practice, and has never had a license or
other authorization to practice revoked;
(3) Has not previously failed an examination for licensure in
this state;
(4) Has paid the applicable fee;
(5) Is a citizen of the United States or is eligible for
employment in the United States; and
(6) Has fulfilled any other requirement specified by the
board.
§30-25-10. Temporary and Emergency Permits.
(a) The board may issue a temporary permit for a period of
ninety days, to an applicant seeking licensure pursuant to section
nine of this article 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 an emergency permit to a person who is
designated as an acting nursing home 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.
§30-25-11. 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 submitting 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 that
each licensee 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.
§30-25-12. Inactive license requirements.
(a) A licensee who does not want to continue in active practice shall notify the board in writing and be granted inactive status.
(b) A person granted inactive status is exempt from fee
requirements and continuing education requirements, and cannot
practice in this state.
(c) When an inactive licensee wants to return to active
practice, he or she must complete all the continuing education
requirements for every licensure year the licensee was on inactive
status and pay all the applicable fees as determined by the board.
§30-25-13. 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.
§30-25-14. 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
promulgated pursuant to this article.
(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.
§30-25-15. 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
.
§30-25-16. 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.
§30-25-17. 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 section one of this article is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than $100 not more than $1,000 or confined in jail not more than six
months, or both fined and confined.
§30-25-18. 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.