Introduced Version
Senate Bill 433 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 433
(By Senators Tucker and Plymale)
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[Introduced March 5, 2013; referred to the Committee on
Government Organization; and then to the Committee on the
Judiciary .]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §27-1A-12, relating
to creating an informal dispute resolution process available
to providers or licensees of the Department of Health and
Human Resources.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §27-1A-12, to read as
follows:
ARTICLE 1A. DEPARTMENT OF HEALTH.
§27-1A-12. Informal Dispute Resolution.
(a) A provider of behavioral health services or a licensee
adversely affected by an order or citation of a deficient practice issued pursuant to this article or pursuant to federal law may
request to use the independent informal dispute resolution process.
A provider or licensee may contest a cited deficiency as contrary
to rule, regulation or law or unwarranted by the facts.
(b) The secretary shall establish a panel of at least three
approved independent review providers. The secretary shall
contract with the independent review providers to conduct the
informal dispute resolution processes. Each independent review
provider shall be accredited by the Utilization Review
Accreditation Commission. When a provider or licensee requests an
informal dispute resolution process, the secretary shall choose one
independent review provider from the approved panel to conduct the
process.
(c) The independent informal dispute resolution process is not
a formal evidentiary proceeding and utilization of the independent
informal dispute resolution process does not waive the right of the
provider or licensee to request a formal hearing.
(d) The independent informal dispute resolution process
consists of the following:
(1) The secretary shall transmit to the provider or licensee
a statement of deficiencies committed by the provider or licensee
and request that the provider or licensee submit a plan of
correction addressing the cited deficiencies no later than ten
working days following the last day of the survey or inspection, or no later than twenty working days following the last day of a
complaint investigation
. 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 provider or licensee returns its plan of
correction to the secretary, the provider or licensee may request,
in writing, to participate in the independent informal dispute
resolution process to protest or refuse all or part of the cited
deficiencies within ten working days. If only certain citations or
the entire report are disputed using the informal dispute
resolution process, no plan of correction is required for citations
under appeal. The secretary may not release the final report until
the appealed citations are resolved.
(3) The secretary shall refer the request to an independent
review provider from the panel of certified independent review
providers approved by the department within five working days of
receipt of the written request for the independent informal dispute
resolution process made by a provider or licensee
. The secretary
shall vary the selection of the independent review providers on a
rotating basis. The secretary shall acknowledge in writing to the
provider or licensee that the request for independent review has
been received and forwarded to the independent review provider.
The notice shall include the name and address of the independent review provider.
(4) The independent review provider shall hold an independent
informal dispute resolution conference unless additional time is
requested by the provider within ten working days of receipt of the
written request for the independent informal dispute resolution
process made by a provider or licensee
. The provider or licensee
may submit additional information before the independent informal
dispute resolution conference.
(5) Neither the secretary nor the provider or licensee may 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 provider, but is limited to:
(A) A desk review of written information submitted by the
provider or licensee; or
(B) A telephonic conference; or
(C) A face-to-face conference held at the location of the
provider or licensee or a mutually agreed upon location.
(6) If the independent review provider determines the need for
additional information, clarification or discussion after
conclusion of the independent informal dispute resolution
conference, the secretary and the provider or licensee shall
present the requested information.
(7) The independent review provider shall make a determination within ten working days of the independent informal dispute
resolution conference, based upon the facts and findings presented,
and shall transmit a written decision containing the rationale for
its determination to the provider or licensee and to the secretary.
(8) If the secretary disagrees with the determination, the
secretary may reject the determination made by the independent
review provider and shall issue an order setting forth the
rationale for the reversal of the independent review provider's
decision to the provider or licensee within ten working days of
receiving the independent review provider's determination. The
secretary may not assign review of the rejection to a designee.
(9) If the secretary accepts the determination, the secretary
shall issue an order affirming the independent review provider's
determination within ten working days of receiving the independent
review provider's determination.
(10) If the independent review provider determines that the
original statement of deficiencies should be changed as a result of
the independent informal dispute resolution process and the
secretary accepts the determination, the secretary shall transmit
a revised statement of deficiencies to the provider or licensee
within ten working days of the independent review provider's
determination.
(11) The provider or licensee shall submit a revised plan to
correct any remaining deficiencies to the secretary within ten working days of receipt of the secretary's order and the revised
statement of deficiencies.
(e) Under the following circumstances, the provider or
licensee is responsible for certain costs of the independent
information dispute resolution review, which shall be remitted to
the secretary within sixty days of the informal conference order:
(1) If the provider or licensee requests a face-to-face
conference, the provider or licensee shall pay any costs incurred
by the independent review provider that exceed the cost of a
telephonic conference, regardless of which party ultimately
prevails.
(2) If the independent review provider's decision supports the
entirety of the originally-written contested deficiency or adverse
action taken by the secretary, the provider or licensee shall
reimburse the secretary for the cost charged by the independent
review provider. If the independent review provider's decision
supports some of the originally-written contested deficiencies, but
not all of them, the independent review provider shall rule as to
approximate portions of the expense to be paid by each party.
(f) Any provider or licensee aggrieved by a decision of the
secretary made pursuant to this rule may contest the decision upon
making a request for an informal dispute resolution within ten
working days of receipt of the notice of the decision.
(g) Administrative and judicial review may be made in accordance with the provisions of article five, chapter
twenty-nine-a of the State Code of West Virginia.
(h) Any decision issued by the secretary shall be made
effective from the date of issuance.
(i) Immediate relief may be obtained by the provider or
licensee upon a showing of good cause made by a verified petition
to the circuit court of Kanawha County.
(j) The pendency of administrative or judicial review does not
prevent the secretary or a provider from obtaining injunctive
relief as provider or licensee for in this statute.
NOTE: The purpose of this bill is to
create an informal
dispute resolution process available to providers or licensees of
the Department of Health and Human Resources.
§27-1A-12 is new; therefore, strike-throughs and underscoring
have been omitted.