WEST virginia legislature
2019 regular session
Introduced
Senate Bill 434
By Senators Boso and Swope
[Introduced January
25, 2019; Referred
to the Committee on Health and Human Resources]
A BILL to repeal §16-5C-16 and §16-5C-17 of the Code of West Virginia, 1931, as amended; and to amend and reenact §16-5C-2, §16-5C-4, §16-5C-5, §16-5C-6, §16-5C-7, §16-5C-8, §16-5C-9, §16-5C-9a, §16-5C-10, §16-5C-11, §16-5C-12, §16-5C-12a, §16-5C-13, §16-5C-14, §16-5C-15, §16-5C-18, §16-5C-20, §16-5C-21, and §16-5C-22 of said code, all relating to the licensure of nursing homes; repealing duplicative sections of code; defining terms; clarifying rule requirements; and clarifying enforcement action and due process procedures.
Be it enacted by the Legislature of West Virginia:
article 5c. nursing homes.
§ 16-5C-2. Definitions.
As used in this article, unless a different meaning appears from the context:
“Deficiency” means a nursing home's failure to meet the requirements specified in §16-5C-1 et seq. of this code and rules promulgated thereunder.
“Department” means the Department of Health and Human Resources.
“Director” means the secretary
of the Department of Health and Human Resources or his or her designee director
of the office of Health Facility Licensure and Certification within the office
of the Inspector General.
“Distance learning technologies” means computer-centered technologies delivered over the internet, broadcasts, recordings, instructional videos, or videoconferencing.
“Household” means a private home or residence which is separate from or unattached to a nursing home.
“Immediate jeopardy” means a situation in which the nursing home's noncompliance with one or more of the provisions of this article or rules promulgated thereunder has caused or is likely to cause serious harm, impairment or death to a resident.
“Nursing home” or “facility” means any institution, residence or place, or any part or unit thereof, however named, in this state which is advertised, offered, maintained or operated by the ownership or management, whether for a consideration or not, for the express or implied purpose of providing accommodations and care, for a period of more than 24 hours, for four or more persons who are ill or otherwise incapacitated and in need of extensive, ongoing nursing care due to physical or mental impairment or which provides services for the rehabilitation of persons who are convalescing from illness or incapacitation.
The care or treatment in a household, whether for compensation or not, of any person related by blood or marriage, within the degree of consanguinity of second cousin to the head of the household, or his or her spouse, may not be deemed to constitute a nursing home within the meaning of this article. Nothing contained in this article applies to nursing homes operated by the federal government; or extended care facilities operated in conjunction with a hospital; or institutions operated for the treatment and care of alcoholic patients; or offices of physicians; or hotels, boarding homes or other similar places that furnish to their guests only room and board; or to homes or asylums operated by fraternal orders pursuant to §35-3-1 et seq. of this code.
“Nursing care” means those
procedures commonly employed in providing for the physical, emotional and rehabilitational
rehabilitation needs of the ill or otherwise incapacitated which require
technical skills and knowledge beyond that which the untrained person
possesses, including, but not limited to, such procedures as: Irrigations,
catheterization, special procedure contributing to rehabilitation, and
administration of medication by any method which involves a level of complexity
and skill in administration not possessed by the untrained person.
“Person” means an individual and every form of organization, whether incorporated or unincorporated, including any partnership, corporation, trust, association, or political subdivision of the state.
“Resident” means an individual living in a nursing home.
“Review organization” means any committee or organization engaging in peer review or quality assurance, including, but not limited to, a medical audit committee, a health insurance review committee, a professional health service plan review committee or organization, a dental review committee, a physician's advisory committee, a podiatry advisory committee, a nursing advisory committee, any committee or organization established pursuant to a medical assistance program, any committee or organization established or required under state or federal statutes, rules or regulations, and any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of residents for the purposes of:
Evaluating and improving the quality of health care rendered; reducing morbidity or mortality; or establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.
“Secretary” means the Secretary of the Department of Health and Human Resources or his or her designee.
“Sponsor” means the person or agency legally responsible for the welfare and support of a resident.
“Person” means an
individual and every form of organization, whether incorporated or
unincorporated, including any partnership, corporation, trust, association or
political subdivision of the state
“Substantial compliance” means a level of compliance with the rules such that no deficiencies exist or such that identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.
The director secretary
may define in the rules any term used herein which is not expressly defined.
§ 16-5C-4. Administrative and inspection staff.
The director secretary
may, at such time or times as he or she may deem necessary, employ such
administrative employees, inspectors, or other persons as may be necessary to
properly carry out the provisions of this article. All employees of the
department shall be members of the state civil service system and surveyors
inspectors shall be trained to perform their assigned duties. Such
inspectors and other employees as may be duly designated by the director
secretary shall act as the director’s secretary’s representatives
and, under the direction of the director secretary, shall enforce
the provisions of this article and all duly promulgated regulations and, in the
discharge of official duties, shall have the right of entry into any place
maintained as a nursing home.
§ 16-5C-5. Rules; minimum standards for nursing homes.
(a) All rules shall be
proposed for legislative approval in accordance with the provisions of §29A-3-1
et seq. of this code. The director secretary shall
recommend the adoption, amendment or repeal of such rules as may be necessary
or proper to carry out the purposes and intent of this article.
(b) The director secretary
shall recommend rules establishing minimum standards of operation of nursing
homes including, but not limited to, the following:
(1) Administrative
policies, including: (A) an affirmative statement of the right of access to
nursing homes by members of recognized community organizations and community
legal services programs whose purposes include rendering assistance without charge
to residents, consistent with the right of residents to privacy; and (B)
a statement of the rights and responsibilities of residents in nursing homes
which prescribe, as a minimum, such a statement of residents' rights as
included in the United States Department of Health and Human Services
regulations, in force on the effective date of this article, governing
participation of nursing homes in the Medicare and Medicaid programs pursuant
to 42 U.S.C.A. §§ 1395 et seq. and 1396 et seq.; (C) the
process to be followed by applicants seeking a license; (D) the clinical,
medical, resident, and business records to be kept by the nursing home; (E) the
procedures and inspections for the review of utilization and quality of
resident care; and (F) the procedures for informal dispute resolution,
independent informal dispute resolution, and administrative due process, and
when such remedies are available;
(2) Minimum numbers of administrators, medical directors, nurses, aides and other personnel according to the occupancy of the facility;
(3) Qualifications of the facility's administrators, medical directors, nurses, aides, and other personnel;
(4) Safety requirements;
(5) Sanitation requirements;
(6) Personal services to be provided;
(7) Dietary services to be provided;
(8) Medical records;
(9) Social and recreational activities to be made available;
(10) Pharmacy services;
(11) Nursing services;
(12) Medical services;
(13) Physical facility;
(14) Resident rights;
(15) Visitation privileges that:
(A) Permit immediate access to a resident, subject to the resident's right to deny or withdraw consent at any time, by immediate family or other relatives of the resident;
(B) Permit immediate access to a resident, subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident; and
(C) Permit access to other specific persons or classes of persons consistent with state and federal law; and
(16) Admission, transfer and discharge rights.
(c) The rules shall also establish exemptions from state law and rule for federally certified Medicare and Medicaid nursing facilities for those specified provisions covered by federal regulations.
(c) (d) The director shall permit the nonclinical
instruction portions of a nurse aide training program approved by the Office of
Health Facility Licensure and Certification to be provided through distance
learning technologies.
§ 16-5C-6. License required; application; fees; duration; renewal.
Subject to the
provisions of section seventeen of this article No person may establish, operate, maintain, offer, or
advertise a nursing home within this state unless and until he or she obtains a
valid license therefor as hereinafter provided, which license remains unsuspended,
unrevoked, and unexpired. No public official or employee may place any person
in, or recommend that any person be placed in, or directly or indirectly cause
any person to be placed in, any nursing home, as defined in §16-5C-2 of this
code, which is being operated without a valid license from the director secretary.
The procedure for obtaining a license is as follows:
(a) The applicant shall
submit an application to the director on a form to be prescribed by the director
secretary, containing such information as may be necessary to show
that the applicant is in compliance with the standards for nursing homes, as
established by this article and the rules lawfully promulgated hereunder. The
application and any exhibits thereto shall provide the following information:
(1) The name and address of the applicant;
(2) The name, address, and principal occupation:
(A) Of each person who, as a stockholder or otherwise, has a proprietary interest of 10 percent or more in the applicant;
(B) Of each officer and director of a corporate applicant;
(C) Of each trustee and beneficiary of an applicant which is a trust; and
(D) Where a corporation has a proprietary interest of 25 percent or more in an applicant, the name, address, and principal occupation of each officer and director of the corporation;
(3) The name and address of the owner of the premises of the nursing home or proposed nursing home, if he or she is a different person from the applicant, and in such case, the name and address:
(A) Of each person who, as a stockholder or otherwise, has a proprietary interest 10 percent or more in the owner;
(B) Of each officer and director of a corporate applicant; and
(C) Of each trustee and applicant, the name, address, and principal occupation of each officer and director of the corporation;
(4) Where the applicant is the lessee or the assignee of the nursing home or the premises of the proposed nursing home, a signed copy of the lease and any assignment thereof;
(5) The name and address of the nursing home or the premises of the proposed nursing home;
(6) A description of the nursing home to be operated;
(7) The bed quota of the
nursing home; as determined by the health care cost review authority
(8) (A) An
organizational plan for the nursing home indicating the number of persons
employed or to be employed and the positions and duties of all employees;
(B) (9) The name and address of the individual who
is to serve as administrator; and
(C) (10) Such evidence of compliance with
applicable laws and rules governing zoning, buildings, safety, fire prevention,
and sanitation as the director secretary may require;
(9) (11) A listing of other states in which the
applicant owns, operates, or manages a nursing home or long-term care facility;
(10) (12) Such additional information as the director
secretary may require; and
(11) (13) Assurances that the nursing home is in
compliance with the provisions of §16-20-1 et seq. of this code.
(b) Upon receipt and
review of an application for license made pursuant to §16-5C-6(a) of this code,
and inspection of the applicant nursing home pursuant to §16-5C-9 and §16-5C-10
of this code, the director secretary shall issue a license if he
or she finds:
(1) That an individual applicant, and every partner, trustee, officer, director, and controlling person of an applicant which is not an individual, is a person responsible and suitable to operate or to direct or participate in the operation of a nursing home by virtue of financial capacity, appropriate business or professional experience, a record of compliance with lawful orders of the department, if any, and lack of revocation of a license during the previous five years or consistent poor performance in other states;
(2) That the facility is under the supervision of an administrator who is licensed pursuant to the provisions of §30-25-1 et seq. of this code; and
(3) That the facility is in substantial compliance with standards established pursuant to §16-5C-5 of this code, and such other requirements for a license as may be established by rule under this article.
Any license granted issued
by the director secretary shall state the maximum bed capacity
for which it is granted issued, the date the license was issued,
and the expiration date. Such licenses shall be issued for a period not to
exceed 15 months for nursing homes: Provided, That any license in
effect for which timely application for renewal, together with payment of the
proper fee has been made to the director secretary in conformance
with the provisions of this article and the rules issued thereunder, and prior
to the expiration date of the license, shall continue in effect until:
(A) Six months following the expiration date of the license; or
(B) The date of the revocation or suspension of the license pursuant to the provisions of this article; or
(C) The date of issuance of a new license, whichever date first occurs.
Each license shall be
issued only for the premises and persons named in the application and is not
transferable or assignable: Provided, That in the case of the transfer
of ownership of a facility with an unexpired license, the application by the
proposed new owner shall be filed with the director secretary no
later than 30 days before the proposed date of transfer. Upon receipt of proof
of the transfer of ownership, the application shall have the effect of a
license for three months. The director secretary shall issue or
deny a license within three months of the receipt of the proof of the transfer
of ownership. Every license shall be posted in a conspicuous place in the
nursing home for which it is issued so as to be accessible to and in plain view
of all residents of and visitors to the nursing home.
(c) A license is
renewable, conditioned upon the licensee filing timely application for the
extension of the term of the license accompanied by the fee, and contingent
upon evidence of compliance with the provisions of this article and rules
promulgated hereunder. Any application for renewal of a license shall include a
report by the licensee in such form and containing such information as shall be
prescribed by the director secretary, including the following:
(1) A balance sheet of
the nursing home as of the end of its fiscal year, setting forth assets and
liabilities at such date, including all capital, surplus, reserve, depreciation
and similar accounts;
(2) A statement of
operations of the nursing home as of the end of its fiscal year, setting forth
all revenues, expenses, taxes, extraordinary items and other credits or
charges; and
(3) If a nursing home
is in compliance with the requirements of the health care facility financial
disclosure act, as provided in article five-f, chapter sixteen of this code, it
will be considered to have met the requirements established in subdivisions (1)
and (2) of this subsection
(4) A a statement of any changes in the name,
address, management, or ownership information on file with the director secretary.
All holders of facility licenses as of the effective date of this article shall
include, in the first application for renewal filed thereafter, such
information as is required for initial applicants under the provisions of §16-5C-6(a)
of this code.
(d) In the case of an
application for a renewal license, if all requirements of §16-5C-5 of this code
are not met, the director secretary may at his or her discretion
issue a provisional license, provided that care given in the nursing home is
adequate for resident needs and the nursing home has demonstrated improvement
and evidences potential for substantial compliance within the term of the
license: Provided, That a provisional license may not be issued for a
period greater than six months, may not be renewed, and may not be issued to
any nursing home that is a poor performer.
(e) A nonrefundable
application fee in the amount of $200 for an original nursing home license
shall be paid at the time application is made for the license. Direct costs of
initial licensure inspections or inspections for changes in licensed bed
capacity shall be borne by the applicant and shall be received by the director
secretary prior to the issuance of an initial or amended license. The
license fee for renewal of a license shall be at the rate of $15 per bed per
year for nursing homes, except the annual rate per bed may be assessed for
licenses issued for less than 15 months. Annually, the director secretary
may adjust the licensure fees for inflation based upon the increase in the
consumer price index during the last 12 months. All such license fees shall be
due and payable to the director secretary, annually, and in the
manner set forth in the rules promulgated hereunder. The fee and application
shall be submitted to the director secretary who shall retain
both the application and fee pending final action on the application. All fees
received by the director secretary under the provisions of this
article shall be deposited in accordance with §16-1-13 of this code.
§ 16-5C-7. Cost disclosure; surety for resident funds.
(a) Each nursing home shall disclose in writing to all residents at the time of admission a complete and accurate list of all costs which may be incurred by them; and shall notify the residents 30 days in advance of changes in costs. The nursing home shall make available copies of the list in the nursing home’s business office for inspection. Residents may not be liable for any cost not so disclosed.
(b) If the nursing home
handles any money for residents within the facility, the licensee or his or her
authorized representative shall either: (1) Give a bond; or (2) obtain and
maintain commercial insurance with a company licensed in this state in an
amount consistent with this subsection and with the surety as the director
secretary shall approve. The bond or insurance shall be upon condition
that the licensee shall hold separately and in trust all residents’ funds
deposited with the licensee; shall administer the funds on behalf of the resident
in the manner directed by the depositor; shall render a true and complete
account to the depositor and the director secretary when
requested, and at least quarterly to the resident; and upon termination of the
deposit, shall account for all funds received, expended, and held on hand. The
licensee shall file a bond or obtain insurance in a sum at least 1.25 times
the average amount of funds deposited with the nursing home during the
nursing home’s previous fiscal year.
This insurance policy shall
specifically designate the resident as the beneficiary or payee reimbursement
of lost funds. Regardless of the type of coverage established by the facility,
the facility shall reimburse, within 30 days, the resident for any losses
directly and seek reimbursement through the bond or insurance itself. Whenever
the director secretary determines that the amount of any bond or
insurance required pursuant to this subsection is insufficient to adequately
protect the money of residents which is being handled, or whenever the amount
of any such bond or insurance is impaired by any recovery against the bond or
insurance, the director secretary may require the licensee to
file an additional bond or insurance in such amount as necessary to adequately
protect the money of residents being handled.
The provisions of this subsection do not apply if the licensee handles less than $35 per resident per month in the aggregate. Nursing homes certified to accept payment by Medicare and Medicaid must meet the requirements for surety bonds as listed in the applicable federal regulations.
§ 16-5C-8. Investigation of complaints.
(a) The director secretary
shall establish rules for prompt investigation of all complaints of alleged
violations by nursing homes of applicable requirements of state law or rules,
except for such complaints that the director secretary determines
are willfully intended to harass a licensee or are without any reasonable
basis. Such procedures shall include provisions for ensuring the confidentiality
of the complainant and for promptly informing the complaint and the nursing
home involved of the results of the investigation.
(b) If, after its
investigation, the director secretary determines that the
complaint has merit, the director secretary shall take
appropriate disciplinary action and shall advise any injured party of the
possibility of a civil remedy.
(1) A nursing home or licensee adversely affected by an order or citation of a deficient practice issued pursuant to this section may request the independent informal dispute resolution process contained in §16-5C-12a of this code.
(2) No later than 20 working
days following the last day of a complaint investigation, the director secretary
shall transmit to the nursing home a statement of deficiencies committed by the
facility. Notification of the availability of the independent informal dispute
resolution process and an explanation of the independent informal dispute
resolution process shall be included in the transmittal.
(c) No nursing home may
discharge or in any manner discriminate against any resident, legal
representative, or employee for the reason that the resident, legal
representative, or employee has filed a complaint or participated in any
proceeding specified in this article. Violation of this prohibition by any
nursing home constitutes ground for the suspension or revocation of the license
of the nursing home as provided in §16-5C-11 and §16-5C-12 of this code.
Any type of discriminatory treatment of a resident, legal representative, or
employee by whom, or upon whose behalf, a complaint has been submitted to the director
secretary, or any proceeding instituted under this article, within 120 days
of the filing of the complaint or the institution of such action, shall raise a
rebuttable presumption that such action was taken by the nursing home in
retaliation for such complaint or action.
§ 16-5C-9. Inspections.
The director secretary
and any duly designated employee or agent shall have the right to enter upon
and into the premises of any nursing home at any time for which a license has
been issued, for which an application for license has been filed with the director
secretary, or which the director secretary has reason to
believe is being operated or maintained as a nursing home without a license. If
entry is refused by the owner or person in charge of the nursing home, the director
secretary may apply to the circuit court of the county in which the
nursing home is located or the Circuit Court of Kanawha County for a warrant
authorizing inspection to conduct the following inspections:
(1) An initial inspection prior to the issuance of a license pursuant to §16-5C-6 of this code;
(2) A license inspection for a nursing home, which shall be conducted at least once every 15 months, if the nursing home has not applied for and received an exemption from the requirement as provided for in this section;
(3) The director secretary,
by the director’s secretary’s authorized employees or agents,
shall conduct at least one inspection prior to issuance of a license pursuant
to §16-5C-6 of this code, and shall conduct periodic unannounced inspections
thereafter, to determine compliance by the nursing home with applicable rules
promulgated thereunder. All facilities shall comply with regulations of the State
Fire Commission. The State Fire Marshal, by his or her employees or
authorized agents, shall make all fire, safety, and like inspections. The director
secretary may provide for such other inspections as the director secretary
may deem necessary to carry out the intent and purpose of this article. Any
nursing home aggrieved by a determination or assessment made pursuant to this
section, shall have the right to an administrative appeal as set forth in §16-5C-12
of this code;
(4) A complaint inspection
based on a complaint received by the director secretary. If,
after investigation of a complaint, the director secretary determines
that the complaint is substantiated, the director secretary may
invoke any applicable remedies available pursuant to §16-5C-11 of this code.
§ 16-5C-9a. Exemptions.
(a) The director secretary
may grant an exemption from a license inspection if a nursing home was found to
be in substantial compliance with the provisions of this chapter at its most
recent inspection and there have been no substantiated complaints thereafter.
The director secretary may not grant more than one exemption in
any two-year period.
(b) The director secretary
may grant an exemption to the extent allowable by federal law from a standard
survey, only if the nursing home was found to be in substantial compliance with
certification participation requirements at its previous standard survey
inspection and there have been no substantiated complaints thereafter.
(c) The director secretary
may grant an exemption from periodic license inspections if a nursing home
receives accreditation by an accrediting body approved by the director secretary
and submits a complete copy of the accreditation report. The accrediting body
shall identify quality of care measures that assure continued quality care of
residents. The director secretary may not grant more than one
exemption in any two-year period.
(d) If a complaint is
substantiated, the director secretary has the authority to
immediately remove the exemption.
§ 16-5C-10. Reports of inspections; plans of correction; assessment of penalties and use of funds derived therefrom; hearings.
(a) Reports of all
inspections made pursuant to §16-5C-8 and §16-5C-9 of this code shall be
in writing and filed with the director secretary and shall list
all deficiencies in the nursing home’s compliance with the provisions of this
article and the rules adopted hereunder.
(1) No later than 10 working
days following the last day of the survey or inspection, the director
shall transmit to the nursing home a copy of such report and shall specify a
time within which the nursing home shall submit a plan for correction of such
deficiencies.
(2) Additionally, notification of the availability of the independent informal dispute resolution process and an explanation of the independent informal dispute resolution process shall be included in the transmittal.
(3) A nursing home adversely affected by an order or citation of a deficient practice issued pursuant to this section may request the independent informal dispute resolution process contained in §16-5C-12a of this code.
(4) The plan submitted by the nursing home shall be approved, rejected, or modified by the director.
(5) The surveyors inspectors
or the nursing home shall allow audio taping of the exit conference with the
expense to be paid by the requesting party.
(b) With regard to a
nursing home with deficiencies and upon its failure to submit a plan of
correction which is approved by the director, or to correct any deficiency
within the time specified in an approved plan of correction, the director
secretary may assess civil penalties as hereinafter provided or may
initiate any other legal or disciplinary action as provided by this article: Provided,
That any action by the director secretary shall be stayed until
federal proceedings arising from the same deficiencies are concluded.
(c) Nothing in this
section may be construed to prohibit the director secretary from
enforcing a rule, administratively or in court, without first affording formal
opportunity to make correction under this section, where, in the opinion of the
director secretary, the violation of the rule jeopardizes the
health or safety of residents, or where the violation of the rule is the second
or subsequent such violation occurring during a period of 12 full months.
(d) Civil penalties
assessed against nursing home shall not be less than $50 nor more than $8,000: Provided,
That the director secretary may not assess a penalty under
state licensure for the same deficiency or violation cited under federal law
and may not assess a penalty against a nursing home if the nursing home
corrects the deficiency within 20 days of receipt of written notice of the
deficiency unless it is a repeat deficiency or the nursing home is a poor
performer.
(e) In determining whether
to assess a penalty, and the amount of penalty to be assessed, the director
secretary shall consider:
(1) How serious the noncompliance is in relation to direct resident care and safety;
(2) The number of residents the noncompliance is likely to affect;
(3) Whether the noncompliance was noncompliance during a previous inspection;
(4) The opportunity the nursing home has had to correct the noncompliance; and
(5) Any additional factors that may be relevant.
(f) The range of civil penalties shall be as follows:
(1) For a deficiency which
presents immediate jeopardy to the health, safety, or welfare of one or more
residents, the director secretary may impose a civil penalty of
not less than $3,000 nor more than $8,000;
(2) For a deficiency which
actually harms one or more residents, the director secretary may
impose a civil penalty of not less than $1,000 nor more than $3,000;
(3) For a deficiency which
has the potential to harm one or more residents, the director secretary
may impose a civil penalty of not less than $50 nor more than $1,000;
(4) For a repeated
deficiency, the director secretary may impose a civil penalty of
up to 150 percent of the penalties provided in §16-5C-10(f)(1) through §16-5C-10(f)(3)
of this code; and
(5) If no plan of
correction is submitted as established in this rule, a penalty may be assessed
in the amount of $100 a day unless a reasonable explanation has been provided
and accepted by the director secretary.
(g) The director secretary
shall assess a civil penalty of not more than $1,000 against an individual who
willfully and knowingly certifies a material and false statement in a resident
assessment. Such penalty shall be imposed with respect to each such resident
assessment. The director secretary shall impose a civil penalty
of not more than $5,000 against an individual who willfully and knowingly
causes another individual to certify a material and false statement in a
resident assessment. Such penalty shall be imposed with respect to each such
resident assessment.
(h) The director secretary
shall assess a civil penalty of not more than $2,000 against any individual who
notifies, or causes to be notified, a nursing home of the time or date on which
an inspection is scheduled to be conducted under this article or under 42
U.S.C.A. §§ 1395 et seq. and 1396 et seq.
(i) If the director
secretary assesses a penalty under this section, the director secretary
shall cause delivery of notice of such penalty by personal service or by
certified mail. Said notice shall state the amount of the penalty, the action
or circumstance for which the penalty is assessed, the requirement that the
action or circumstance violates, and the basis upon which the director secretary
assessed the penalty and selected the amount of the penalty.
(j) The director secretary
shall, in a civil judicial proceeding, recover any unpaid assessment which has
not been contested under §16-5C-12 of this code within 30 days of receipt of
notice of such assessment, or which has been affirmed under the provisions of
that section and not appealed within 30 days of receipt of the director’s
Board of Review’s final order, or which has been affirmed on judicial
review, as provided in §16-5C-13 of this code. All money collected by
assessments of civil penalties or interest shall be paid into a special
resident benefit account and shall be applied by the director secretary
for:
(1) The protection of the health or property of facility residents;
(2) Long-term care educational activities;
(3) The costs arising from the relocation of residents to other nursing homes when no other funds are available; and
(4) In an emergency situation in which there are no other funds available, the operation of a facility pending correction of deficiencies or closure.
(k) The opportunity for a hearing on an action taken under this section shall be as provided in §16-5C-12 of this code.
§ 16-5C-11. License
limitation, suspension, revocation; continuation of disciplinary proceedings
Ban on admissions; closure; transfer of residents; appointment of
temporary management; assessment of interest; collection of assessments;
promulgation of rules to conform with federal requirements. hearings
(a) The director secretary
may reduce the bed quota of the nursing home or impose a ban on new admissions,
where he or she finds upon inspection of the nursing home that the licensee is
not providing adequate care under the nursing home’s existing bed quota, and
that reduction in quota or ban on new admissions, or both, would place the
licensee in a position to render adequate care. A reduction in bed quota or a
ban on new admissions, or both, may remain in effect until the nursing home is
determined by the director secretary to be in substantial
compliance with the rules. In addition, the director secretary shall
determine that the facility has the management capability to ensure continued
substantial compliance with all applicable requirements. The director secretary
shall evaluate the continuation of the admissions ban or reduction in bed quota
on a continuing basis, and may make a partial lifting of the admissions ban or
reduction in bed quota consistent with the purposes of this section. If the
residents of the facility are in immediate jeopardy of their health, safety, welfare,
or rights, the director secretary may seek an order to transfer
residents out of the nursing home as provided for in subsection (e) of this
section §16-5C-11(d) of this code. Any notice to a licensee of
reduction in bed quota or a ban on new admissions shall include the terms of
such order, the reasons therefor, and a date set for compliance.
(b) The director secretary
may deny, limit, suspend, or revoke a license issued under this article
or take other action as set forth in this section, if he or she finds upon
inspection that there has been a substantial failure to comply with the
provisions of this article or the standards or rules promulgated pursuant
hereto.
(c) Whenever a license
is limited, suspended or revoked pursuant to this section or the director
imposes other action set forth in this section, the director shall file a
complaint stating facts constituting a ground or grounds for such limitation,
suspension or revocation or other action. Upon the filing of the complaint,
the director shall notify the licensee in writing of the filing of the
complaint within twenty days of exit conference, enclosing a copy of the
complaint, and shall advise the licensee of the availability of a hearing
pursuant to section twelve of this article. Such notice and copy of the
complaint shall be served on such licensee by certified mail, return receipt
requested
(d) (c) The suspension, expiration, forfeiture,
or cancellation by operation of law or order of the director secretary
of a license issued by the director, or the withdrawal of an application for a
license after it has been filed with the director secretary, may
not deprive the director secretary of the director’s secretary’s
authority to institute or continue a disciplinary proceeding, or a proceeding
for the denial of a license application, against the licensee or applicant upon
any ground provided by law or to enter an order denying the license application,
or suspending, or revoking the license, or otherwise taking disciplinary
action on any such ground.
(e) (d) In addition to other remedies provided in
this article, upon petition from the director secretary, a
circuit court in the county in which a facility is located, or in Kanawha
County if emergency circumstances occur, may determine that a nursing home’s
deficiencies under this article, or under 42 U.S.C.A. §§ 1395 et seq. and
1396 et seq., if applicable, constitute an emergency immediately jeopardizing
the health, safety, welfare, or rights of its residents, and issue an order to:
(1) Close the nursing home;
(2) Transfer residents in the nursing home to other nursing homes; or
(3) Appoint temporary management to oversee the operation of the facility and to assure the health, safety, welfare, and rights of the nursing home’s residents, where there is a need for temporary management while:
(A) There is an orderly closure of the facility; or
(B) Improvements are made in order to bring the nursing home into compliance with all the applicable requirements of this article and, if applicable, 42 U.S.C.A. §§ 1395 et seq. and 1396 et seq.
If the director secretary
petitions a circuit court for the closure of a nursing home, the transfer of
residents, or the appointment of temporary management, the circuit court shall
hold a hearing no later than seven days thereafter, at which time the director
secretary and the licensee or operator of the nursing home may
participate and present evidence. The burden of proof is on the director
secretary.
A circuit court may divest the licensee or operator of possession and control of a nursing home in favor of temporary management. The temporary management shall be responsible to the court and shall have such powers and duties as the court may grant to direct all acts necessary or appropriate to conserve the property and promote the health, safety, welfare, and rights of the residents of the nursing home, including, but not limited to, the replacement of management and staff, the hiring of consultants, the making of any necessary expenditures to close the nursing home, or to repair or improve the nursing home so as to return it to compliance with applicable requirements, and the power to receive, conserve, and expend funds, including Medicare, Medicaid, and other payments on behalf of the licensee or operator of the nursing home. Priority shall be given to expenditures for current direct resident care or the transfer of residents. Expenditures other than normal operating expenses totaling more than $20,000 shall be approved by the circuit court.
The person charged with
temporary management shall be an officer of the court, is not liable for
conditions at the nursing home which existed or originated prior to his or her
appointment, and is not personally liable, except for his or her own gross
negligence and intentional acts which result in injuries to persons or damage
to property at the nursing home during his or her temporary management. All
compensation and per diem costs of the temporary manager shall be paid by the
nursing home. The costs for the temporary manager for any 30-day period may not
exceed the 75th percentile of the allowable administrator’s salary as reported
on the most recent cost report for the nursing home’s peer group as determined
by the director secretary. The temporary manager shall bill the
nursing home for compensation and per diem costs. Within 15 days of receipt of
the bill, the nursing home shall pay the bill or contest the costs for which it
was billed to the court. Such costs shall be recoverable through recoupment
from future reimbursement from the state Medicaid agency in the same fashion as
a benefits overpayment.
The temporary management shall promptly employ at least one person who is licensed as a nursing home administrator in West Virginia.
A temporary management
established for the purpose of making improvements in order to bring a nursing
home into compliance with applicable requirements may not be terminated until
the court has determined that the nursing home has the management capability to
ensure continued compliance with all applicable requirements, except if the
court has not made such determination within six months of the establishment of
the temporary management, the temporary management terminates by operation of
law at that time, and the nursing home shall be closed. After the termination
of the temporary management, the person who was responsible for the temporary
management shall make an accounting to the court, and after deducting from
receipts the costs of the temporary management, expenditures, and civil
penalties, and interest no longer subject to appeal, in that order, any excess
shall be paid to the licensee or operator of the nursing home.
(f) (e) The assessments for penalties and for
costs of actions taken under this article shall have interest assessed at five
percent per annum beginning 30 days after receipt of notice of such assessment
or 30 days after receipt of the director’s Board of Review’s final
order following a hearing, whichever is later. All such assessments against a
nursing home that are unpaid shall be added to the nursing home’s licensure fee
and may be filed as a lien against the property of the licensee or operator of
the nursing home. Funds received from such assessments shall be deposited as
funds received in §16-5C-10 of this code.
(g) The director may
propose additional rules and emergency rules that expand the power of the
director in excess of that provided in this article to the extent required to comply
with federal requirements, but any such rules shall expand the power of the
director to the minimum extent required by federal requirements. Such rules
are subject to the provisions of article three, chapter twenty-nine-a of this
code
(h) (f) The opportunity for a hearing on an action
by the director secretary taken under this section shall be as
provided in §16-5C-12 of this code.
§ 16-5C-12. Administrative
appeals for civil assessments License denial, limitation, suspension,
or revocation.
(a) Any licensee or
applicant aggrieved by an order issued pursuant to sections, five, six, ten or
eleven of this article may request an informal and formal hearing at which the
licensee or applicant may contest the order as contrary to law or unwarranted
by the facts or both. All of the pertinent provisions of article five, chapter
twenty-nine-a o this code apply to and govern a formal hearing and the
administrative procedures in connection with any formal hearing.
A facility or licensee adversely
affected by an order or citation of a deficient practice issued pursuant to
this article or by a citation issued for a deficient practice pursuant to
federal law may request the independent informal dispute resolution process
contained in section twelve-a of this article. A facility may contest a cited
deficiency as contrary to law or unwarranted by the facts or both.
The director may impose
the following prior to or during the pendency of an informal hearing, an
independent informal dispute resolution process or of a formal hearing:
(1) A reduction in the
bed quota pursuant to section eleven of this article; or
(2) Transfer of
residents and a ban on new admissions pursuant to section eleven of this
article The secretary shall deny, limit,
suspend, or revoke a license issued if the provisions of this article or if the
rules promulgated pursuant to this article are violated. The secretary may
revoke a nursing home’s license and prohibit all physicians and licensed
disciplines associated with that nursing home from practicing at the nursing
home location based upon an annual, periodic, complaint, verification, or other
inspection and evaluation.
(b) Informal hearings
shall be held within twenty working days of the director’s receipt of timely
request for appeal, unless the licensee or applicant aggrieved by the order
consents to a postponement or continuance. In no event may the informal
hearing occur more than thirty business days after the director receives timely
request for appeal. At the informal hearing, neither the licensee or applicant
nor the director may be represented by an attorney. Within ten days of the
conclusion of the informal hearing, the director shall issue an informal
hearing order, including a basis for the decision Before any such
license is denied, limited, suspended, or revoked, however, written notice
shall be given to the licensee, stating the grounds for such denial,
limitation, suspension, or revocation.
(c) If the applicant or
licensee requested a formal hearing only, the director and the licensee shall
proceed in accordance with the provisions of the Department of Health and Human
Resources rules of procedure for contested case hearings and declaratory
rulings. If the applicant or licensee also requested an informal hearing or
the independent informal dispute resolution process contained in section
twelve-a of this article, and if the order is not favorable to the applicant or
licensee, the director shall notify the administrative hearing examiner of the
request for an appeal within five business days of issuing the order An
applicant or licensee has 10 working days after receipt of the order denying,
limiting, suspending, or revoking a license to request a formal hearing
contesting the denial, limitation, suspension, or revocation of a license under
this article. If a formal hearing is requested, the applicant or licensee and
the secretary shall proceed in accordance with the provisions of §29A-5-1 et
seq. of this code.
(d) If a license is denied or revoked as herein provided, a new application for license shall be considered by the secretary 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. A new license shall then be granted after proper inspection, if applicable, has been made and all provisions of this article and rules promulgated pursuant to this article have been satisfied.
(e) If the license of a nursing home is denied, limited, suspended, or revoked, the administrator or owner or lessor of the nursing home property shall cease to operate the facility as a nursing home as of the effective date of the denial, limitation, suspension, or revocation. The owner or lessor of the nursing home property is responsible for removing all signs and symbols identifying the premises as a nursing home within 30 days. Any administrative appeal of such denial, limitation, suspension, or revocation shall not stay the denial, limitation, suspension, or revocation.
(f) Upon the effective date of the denial, limitation, suspension, or revocation, the administrator of the nursing home shall advise the secretary and the Board of Pharmacy of the disposition of all medications located on the premises. The disposition is subject to the supervision and approval of the secretary. Medications that are purchased or held by a nursing home that is not licensed may be deemed adulterated.
(g) The period of suspension for the license of a nursing home shall be prescribed by the secretary but may not exceed one year.
§ 16-5C-12a. Independent informal dispute resolution.
(a) A facility or licensee adversely affected by an order or citation of a deficient practice issued pursuant to this article or by a citation issued for a deficient practice pursuant to federal law may request the independent informal dispute resolution process. A facility may contest a cited deficiency as contrary to law or unwarranted by the facts or both.
(b) The director secretary
shall contract with at least up to three independent review
organizations to conduct an independent informal dispute resolution process for
facilities. The independent review organization shall be accredited by the
Utilization Review Accreditation Commission.
(c) The independent informal dispute resolution process is not a formal evidentiary proceeding and utilizing the independent informal dispute resolution process does not waive the facility’s right to a formal hearing.
(d) The independent informal dispute resolution process consists of the following:
(1) No later than 10 working
days following the last day of the survey or inspection, or no later than 20 working
days following the last day of a complaint investigation, the director
secretary shall transmit to the facility a statement of deficiencies
committed by the facility. Notification of the availability of the independent
informal dispute resolution process and an explanation of the independent
informal dispute resolution process shall be included in the transmittal;
(2) When the facility
returns its plan to correct the cited deficiencies to the director secretary,
the facility may request in writing the independent informal dispute resolution
process to refute the cited deficiencies;
(3) Within five working
days of receipt of the written request for the independent informal dispute
resolution process made by a facility, the director secretary shall
refer the request to an independent review organization from the list of
certified independent review organizations approved by the state. The director secretary shall vary the
selection of the independent review organization on a rotating basis. The director
secretary shall acknowledge in writing to the facility that the request
for independent review has been received and forwarded to an independent review
organization for review. The notice shall include the name and address of the
independent review organization.
(4) Within 10 working days of receipt of the written request for the independent informal dispute resolution process made by a facility, the independent review organization shall hold an independent informal dispute resolution conference unless additional time is requested by the facility. Before the independent informal dispute resolution conference, the facility may submit additional information.
(5) The facility may not be accompanied by counsel during the independent informal dispute resolution conference. The manner in which the independent informal dispute resolution conference is held is at the discretion of the facility, but is limited to:
(A) A desk review of
written information submitted by the facility; or
(B) A telephonic conference; or
(C) A face-to-face conference held at the facility or a mutually agreed upon location.
(6) If the independent review organization determines the need for additional information, clarification, or discussion after conclusion of the independent informal dispute resolution conference, the director and the facility shall present the requested information.
(7) Within 10 calendar days of the independent informal dispute resolution conference, the independent review organization shall provide and make a determination, based upon the facts and findings presented, and shall transmit a written decision containing the rationale for its determination to the facility and the director.
(8) If the director
secretary disagrees with the determination, the director secretary
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 organization’s decision to the facility within 10 calendar
days of receiving the independent review organization’s determination.
(9) If the director
secretary accepts the determination, the director secretary
shall issue an order affirming the independent review organization’s
determination within 10 calendar days of receiving the independent review
organization’s determination.
(10) If the independent
review organization determines that the original statement of deficiencies
should be changed as a result of the independent informal dispute resolution
process and the director secretary accepts the determination, the
director secretary shall transmit a revised statement of
deficiencies to the facility within 10 calendar days of the independent review
organization’s determination.
(11) Within 10 calendar
days of receipt of the director’s secretary’s order and the
revised statement of deficiencies, the facility shall submit a revised plan to
correct any remaining deficiencies to the director secretary.
(e) A facility has 10 calendar
days after receipt of the director’s secretary’s order to request
a formal hearing for any deficient practice cited under this article. If the
facility requests a formal hearing, the director secretary and
the facility shall proceed in accordance with the provisions of §29A-5-1 et
seq. of this code.
(f) Under the following
circumstances, the facility is responsible for certain costs of the independent
informal dispute resolution review, which shall be remitted to the director
secretary within 60 days of the informal hearing order:
(1) If the facility requests a face-to-face conference, the facility shall pay any costs incurred by the independent review organization that exceed the cost of a telephonic conference, regardless of which part ultimately prevails.
(2) If the independent
review organization’s decision supports the originally written contested
deficiency or adverse action taken by the director, the facility shall
reimburse the director secretary 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 facility shall reimburse the director secretary
for the cost charged by the independent review organization on a pro rata
basis.
(g) The director shall
report to the Legislative Oversight Commission on Health and Human Resources
Accountability during the July interim meetings in 2013 on the informal dispute
resolution process. This report shall at a minimum include the number of times
the informal dispute resolution process is requested, the result of the
process, and the number of times the director does not agree and changes the
determination of the independent review organization
§ 16-5C-13. Judicial Review.
Any licensee adversely
affected by an order of the director rendered after a hearing held in
accordance with the provisions of section twelve of this article is entitled to
judicial review thereof. All of the pertinent provisions of section four,
article five, chapter twenty-nine-a of this code shall apply to and govern with
like effect as if the provisions of said section four were set forth in
extensor in this section.
(a) Any applicant or licensee who is dissatisfied with the decision of the formal hearing as a result of the hearing provided for in §16-5C-12 of this code may, within 30 days after receiving notice of the decision, petition the Circuit Court of Kanawha County, in term or in vacation, for judicial review of the decision.
(b) The court may affirm, modify, or reverse the decision of the Board of Review and either the applicant, licensee, or secretary may appeal from the court’s decision to the Supreme Court of Appeals.
(c) The judgment of the circuit court shall be final unless reversed, vacated, or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of §29A-6-1 et seq. of this code.
§ 16-5C-14. Legal
counsel and services of the director department.
(a) Legal counsel and
services for the director department in all administrative
hearings may be provided by the Attorney General or a staff attorney and all
proceedings in any circuit court and the Supreme Court of Appeals shall be
provided by the Attorney General, or his or her assistants, or an attorney
employed by the director department in proceedings in any circuit
court, by the prosecuting attorney of the county as well, all without
additional compensation.
(b) The Governor may
appoint counsel for the director department, who shall perform
such legal services in representing the interests of residents in nursing homes
in matters under the jurisdiction of the director secretary as
the Governor shall direct. It shall be the duty of such counsel to appear for
the residents in all cases where they are not represented by counsel. The
compensation of such counsel shall be fixed by the Governor.
§16-5C-15. Unlawful acts; penalties; injunctions; private right of action.
(a) Whoever advertises,
announces establishes, or maintains,
or is engaged in establishing or maintaining a nursing home without a license
granted under §16-5C-6, or who prevents, interferes with or impedes in any
way the lawful enforcement of this article is guilty of a misdemeanor and, upon
conviction thereof, shall be punished for the first offense by a fine of not
more than $100, or by confinement in jail for a period of not more than 90
days, or by both fine and confinement, at the discretion of the court. For each
subsequent offense, the fine may be increased to not more than $250, with
confinement in jail for a period of not more than 90 days, or by both fine and
confinement, at the discretion of the court. Each day of a continuing violation
after conviction is considered a separate offense.
(b) The director secretary
may in his or her discretion bring an action to enforce compliance with this
article or any rule or order hereunder whenever it appears to the director secretary
that any person has engaged in, or is engaging in, an act or practice in
violation of this article or any rule or order hereunder, or whenever it
appears to the director secretary that any person has aided, abetted or caused, or is
aiding, abetting or causing, such an act or practice. Upon application by the director secretary, the circuit court of the county in which the conduct
has occurred or is occurring, or if emergency circumstances occur the circuit
court of Kanawha County, has jurisdiction to grant without bond a permanent or
temporary injunction, decree or restraining order.
Whenever the director secretary
has refused to grant or renew a license, or has revoked a license required by
law to operate or conduct a nursing home, or has ordered a person to refrain
from conduct violating the rules of the director secretary, and the person has appealed the action of the director secretary, the court may, during pendency of the appeal, issue a
restraining order or injunction upon proof that the operation of the nursing
home or its failure to comply with the order of the director secretary
adversely affects the well being or safety of the residents of the nursing
home. Should a person who is refused a license or the renewal of a license to
operate or conduct a nursing home or whose license to operate is revoked or who
has been ordered to refrain from conduct or activity which violates the rules
of the director secretary fails to appeal or should the appeal be decided
favorably to the director secretary, then the
court shall issue a permanent injunction upon proof that the person is
operating or conducting a nursing home without a license as required by law, or
has continued to violate the rules of the director secretary.
(c) Any nursing home that deprives a resident of any right or benefit created or established for the well-being of this resident by the terms of any contract, by any state statute or rule, or by any applicable federal statute or regulation, shall be liable to the resident for injuries suffered as a result of such deprivation. Upon a finding that a resident has been deprived of such a right or benefit, and that the resident has been injured as a result of such deprivation, and unless there is a finding that the nursing home exercised all care reasonably necessary to prevent and limit the deprivation and injury to the resident, compensatory damages shall be assessed in an amount sufficient to compensate the resident for such injury. In addition, where the deprivation of the right or benefit is found to have been willful or in reckless disregard of the lawful rights of the resident, punitive damages may be assessed. A resident may also maintain an action pursuant to this section for any other type of relief, including injunctive and declaratory relief, permitted by law. Exhaustion of any available administrative remedies is not required prior to commencement of suit under this subsection.
(d) The amount of damages recovered by a resident, in an action brought pursuant to this section, is exempt for purposes of determining initial or continuing eligibility for medical assistance under §9-4-1 et seq. of this code, and may neither be taken into consideration, nor required to be applied toward the payment or part payment of the cost of medical care or services available under that article.
(e) Any waiver by a resident or his or her legal representative of the right to commence an action under this section, whether oral or in writing, is void as contrary to public policy.
(f) The penalties and remedies provided in this section are cumulative and are in addition to all other penalties and remedies provided by law.
(g) Nothing in this section or any other section of the code shall limit the protections afforded nursing homes or their health care providers under §55-7b-1 et seq. of this code. Nursing homes and their health care providers shall be treated in the same manner as any other health care facility or health care provider under §55-7b-1 et seq. of this code. The terms “health care facility” and “health care provider” as used in this subsection shall have the same meaning as set forth in §55-7b-2(f) and (g) of this code.
(h) The amendments to
this section enacted during the 2013 Regular Session of the Legislature shall
be effective July 1, 2013: Provided, That there shall be no inference,
either positive or negative, to any legal action pending pursuant to this
section as of July 1, 2013. The amendments to this section in 2013 are not in
any way intended to modify, change, expand or contract the Medical Professional
Liability Act The proper construction of this section and the limitations
and provisions of §55-7b-1 et seq. of this code shall be determined by
principles of statutory construction.
§ 16-5C-16. Availability of reports and records.
[Repealed.]
§ 16-5C-17. Licenses and rules in force.
[Repealed.]
§ 16-5C-18. Separate accounts for residents’ personal funds; consent for use; records; penalties.
(a) Each nursing home subject to the provisions of this article shall hold in a separate account and in trust each resident’s personal funds deposited with the nursing home.
(b) No person may use or cause to be used for any purpose the personal funds of any resident admitted to any such nursing home unless consent for the use thereof has been obtained from the resident or from a committee or guardian or relative.
(c) Each nursing home shall maintain a true and complete record of all receipts for any disbursements from the personal funds account of each resident in the nursing home, including the purpose and payee of each disbursement, and shall render a true account of such record to the resident or his or her representative upon demand and upon termination of the resident’s stay in the nursing home.
(d) Any person or corporation who violates any subsection of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or imprisoned in jail not more than one year, or both fined and imprisoned.
(e) Reports provided to
review organizations are confidential unless inaccessibility of information
interferes with the director’s secretary’s ability to perform his
or her oversight function as mandated by federal regulations and this section.
(f) Notwithstanding §16-5C-18(b) of this code or any other provision of this code, upon the death of a resident, any funds remaining in his or her personal account shall be made payable to the person or probate jurisdiction administering the estate of said resident: Provided, That if after 30 days there has been no qualification over the decedent resident’s estate, those funds are presumed abandoned and are reportable to the State Treasurer pursuant to the West Virginia Uniform Unclaimed Property Act, §36-8-1 et seq. of this code.
§ 16-5C-20. Hospice palliative care required to be offered.
(a) When the health status of a nursing home facility resident declines to the state of terminal illness or when the resident receives a physician’s order for “comfort measures only,” the facility shall notify the resident with information about the option of receiving hospice palliative care. If a nursing home resident is incapacitated, the facility shall also notify any person who has been given the authority of guardian, a medical power of attorney, or health care surrogate over the resident, information stating that the resident has the option of receiving hospice palliative care.
(b) The facility shall
document that it has notified the resident, and any person who has been given a
medical power of attorney or health care surrogate over the resident,
information about the option of hospice palliative care and maintain the
documentation so that the director secretary may inspect the
documentation, to verify the facility has complied with this section.
§ 16-5C-21. Employment restrictions.
(a) Notwithstanding a
legislative rule or provider manual issued by the department, a person cannot
be employed by a nursing home unless granted a variance by the secretary, or
his or her designee, if convicted of:
(1) Abduction or
kidnapping;
(2) Any violet felony
crime including, but not limited to, rape, sexual assault, homicide, felonious
physical assault or felonious battery;
(3) Child or adult
abuse or neglect;
(4) Crimes which
involve the exploitation of a child or an incapacitated adult;
(5) Felony domestic
battery or domestic assault;
(6) Felony arson;
(7) Felony or
misdemeanor crime against a child or incapacitated adult which causes harm;
(8) Felony drug-related
offenses;
(9) Felony driving
under the influence of drugs or alcohol;
(10) Hate crimes;
(11) Murder or
manslaughter;
(12) Neglect or abuse
by a caregiver;
(13) Pornography crimes
involving children or incapacitated adults including, but not limited to, use
of minors or incapacitated adults in filming sexual explicit conduct,
distribution and exhibition of material depicting minors or incapacitated
adults in sexually explicit conduct or sending, distributing, exhibiting,
possessing, displaying or transporting material by a parent, guardian or
custodian, depicting a minor or incapacitated adult engaged in sexually
explicit conduct;
(14) Purchase or sale
of a child;
(15) Sexual offenses
including, but not limited to, incest, sexual abuse or indecent exposure;
(16) Felony or
misdemeanor involving financial exploitation of a minor or elderly person; or
(17) Felony offense
related to fraud, theft, embezzlement, breach of fiduciary responsibility or
other financial misconduct in connection with the delivery of a health care
item or service, or with respect to any act or omission in a health care
program operated or financed, in whole or in part, by any federal, state or
local government agency; or
(18) Any criminal
offense related to the delivery of an item or service under Medicare or a state
health care program.
(b) The secretary shall
propose rules for legislative approval in accordance with article three, chapter
twenty-nine-a of this code, to allow persons to appeal decisions, demonstrate
rehabilitation, request a review of their initial negative determinations and
to implement any variance procedure as may be required by state or federal law All personnel of a nursing home by virtue of
ownership, employment, engagement, or agreement with a provider or contractor
shall be subject to the provisions of the West Virginia Clearance for Access:
Registry and Employment Screening Act, §16-49-1 et seq. of this code and
the rules promulgated pursuant thereto.
§ 16-5C-22. Jury trial waiver to be a separate document.
(a) Every written agreement containing a waiver of a right to a trial by jury that is entered into between a nursing home and a person for the nursing care of a resident, must have as a separate and stand alone document any waiver of a right to a trial by jury.
(b) Nothing in this section may be construed to require a court of competent jurisdiction to determine that the entire agreement or any portion thereof is enforceable, unenforceable, conscionable, or unconscionable.
(c) This section
applies to all agreements entered into on or after January 1, 2015
NOTE: The purpose of this bill is to update references to the secretary and bureau within the agency responsible for regulating nursing homes. This bill also updates the reference to the code of state rules for contested cases, updates the due process procedure, and makes technical cleanup.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.