WEST virginia legislature
2019 regular session
Introduced
House Bill 2607
By Delegates Hill, Howell, Rowan, Staggers and Jeffries
[Introduced
January 23, 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; 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.