ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 349
____________
[Originating in the Committee on Health and Human Resources;
reported March 27, 1997.]
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A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article five-n, relating
to establishing a new licensure category for residential
care communities; stating public policy; defining terms;
setting forth powers and duties of the director of the
division of health with regard to residential care
communities; providing for administrative and inspection
staff; authorizing and directing proposal of legislative
rules; establishing minimum standards for residential care
communities; requiring a license for operation; providing
for application procedures and fees; providing for license
expiration, renewal, revocation, suspension and limitation;
requiring cost disclosure to potential residents; limiting liability for costs not disclosed; prohibiting management of
residents' personal funds; requiring compliance with fire
code; setting forth provisions for inspections; prohibiting
retaliation; requiring reports and plans of correction;
classifying types of violations; providing for notice of
violation or noncompliance; authorizing assessment of civil
penalties, interest, attorneys fees and costs; providing for
hearings of contested cases; providing for administrative
appeals; providing for judicial review; providing for
collection of unpaid penalties; authorizing judicial
appointment of temporary management and specifying scope of
authority; providing for automatic stay of certain actions;
authorizing certain emergency rules; providing for legal
counsel to the director; specifying unlawful acts;
authorizing injunctive relief and private causes of action;
setting forth damages which may be recovered; requiring that
certain reports and records be made available; and providing
for confidentiality of residents' records.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article five-n, to read
as follows:
ARTICLE 5N. RESIDENTIAL CARE COMMUNITIES.
§16-5N-1. Purpose.
It is the policy of this state to encourage and promote the
development and utilization of quality residential communities
for persons who desire to live independently in an apartment, who
are or may be dependent upon the services of others by reason of
physical or mental impairment, and who may require limited and
intermittent nursing care and who are capable of self- preservation and are not bedfast, including those individuals who
qualify for and are receiving services coordinated by a licensed
hospice. This care and treatment requires a living environment
for these persons which, to the extent practicable, approximates
a normal home environment. To this end, it is the policy of this
state to encourage and promote the development and maintenance of
residential care communities. The provisions of this article are
remedial and shall be liberally construed to effectuate its
purposes and intents.
§16-5N-2. Definitions.
As used in this article, unless a different meaning appears
from the context:
(a) "Capable of self-preservation" means that a person is,
at a minimum, physically capable of removing himself or herself
from situations involving imminent danger such as fire;
(b) "Deficiency" means a statement of the rule and the fact
that compliance has not been established and the reasons therefor;
(c) "Department" means the state department of health and
human resources;
(d) "Director" means the director of the division of health;
(e) "Division" means the division of health of the state
department of health and human resources;
(f) "Limited and intermittent nursing care" means direct
hands-on nursing care of a resident who needs no more than two
hours of nursing care per day for a period of time no longer than
ninety consecutive days per episode, which care may be provided
only when the need for it meets these requirements: (1) The
resident requests that he or she remain in the residential care
community; (2) the resident is advised of the availability of
other specialized health care facilities to treat his or her
condition; and (3) the need for care results from a medical
pathology or the normal aging process. Limited and intermittent
nursing care may be provided only by or under the supervision of
a registered professional nurse and in accordance with
legislative rules proposed by the secretary;
(g) "Nursing care" means those procedures commonly employed
in providing for the physical, emotional and rehabilitation needs
of the ill or otherwise incapacitated and which require technical
skills and knowledge beyond those that untrained persons possess,
including, irrigations, catheterization, special procedures that contribute to rehabilitation, and administration of medication by
any method involving a level of complexity and skill not
possessed by untrained persons;
(h) "Person" means a natural person and every form of
organization, whether incorporated or unincorporated, including
partnerships, corporations, trusts, associations and political
subdivisions of the state;
(i) "Personal assistance" means services of a personal
nature, including help in walking, bathing, dressing, toileting,
getting in or out of bed and supervision that is required because
of the age or mental impairment of a resident;
(j) "Resident" means an individual who lives in a
residential care community for the purpose of receiving personal
assistance or limited and intermittent nursing services from the
community;
(k) "Residential care community" means any group of
seventeen or more residential apartments, however named, which
are part of a larger independent living community and which are
advertised, offered, maintained or operated by an owner or
manager, regardless of consideration or the absence thereof, for
the express or implied purpose of providing accommodations,
personal assistance and supervision for a period of more than
twenty-four hours at one time to seventeen or more persons who
are or may be dependent upon the services of others by reason of physical or mental impairment or who may require limited and
intermittent nursing care but who are capable of self- preservation and are not bedfast, including those individuals who
qualify for and are receiving services coordinated by a licensed
hospice. Each apartment in a residential care community shall be
at least three hundred square feet in size, have doors capable of
being locked and contain at least: (1) One bedroom; (2) one
kitchenette that includes a sink and a refrigerator; and (3) one
full bathroom that includes a bathing area, toilet and sink.
Services utilizing equipment which requires auxiliary electrical
power in the event of a power failure may not be used unless the
residential care community has a backup power generator. Nothing
contained in this article applies to hospitals, as defined under
section one, article five-b of this chapter, state institutions,
as defined under section three, article one, chapter twenty-five
of this code or section six, article one, chapter twenty-seven of
this code, residential care communities operated by the federal
government or the state government, institutions operated for the
treatment and care of alcoholic patients, offices of physicians,
hotels, boarding homes or other similar places that furnish only
room and board, or to homes or asylums operated by fraternal
orders pursuant to article three, chapter thirty-five of this
code;
(l) "Secretary" means the secretary of the state department of health and human resources or his or her designee; and
(m) "Substantial compliance" means a level of compliance
with the rules promulgated hereunder that identified deficiencies
pose a risk to resident health or safety no greater than a
potential for causing minimal harm.
The secretary may by rule define terms pertinent to this
article which are not defined herein.
§16-5N-3. Powers, duties and rights of director.
In the administration of this article, the director has the
following powers, duties and rights:
(a) To enforce rules and standards for residential care
communities as adopted, proposed, amended or modified by the
secretary;
(b) To exercise all powers granted herein relating to the
issuance, suspension and revocation of licenses of residential
care communities;
(c) To enforce rules governing the qualification of
applicants for residential care community licenses, including,
but not limited to, educational, financial, personal and ethical
requirements, as adopted, proposed, amended or modified by the
secretary;
(d) To receive and disburse federal funds and to take any
lawful action that is necessary or appropriate to comply with the
requirements and conditions for the receipt or expenditure of federal funds;
(e) To receive and disburse funds appropriated by the
Legislature to the division for any authorized purpose;
(f) To receive and disburse funds obtained by the division
by way of gift, grant, donation, bequest or devise, according to
the terms thereof, funds derived from the division's operation,
and funds from any other source, no matter how derived, for any
authorized purpose;
(g) To negotiate and enter into contracts, and to execute
all instruments necessary or convenient in carrying out the
functions and duties of the position of director; and all of
these contracts, agreements and instruments shall be executed by
the director;
(h) To appoint officers, agents, employees and other
personnel and establish the duties and fix the compensation
thereof;
(i) To offer and sponsor education and training programs for
residential care communities' administrative, managerial and
operations personnel;
(j) To undertake survey, research and planning projects and
programs relating to the administration and operation of
residential care communities and to the health, care, treatment
and service in general of residents of these communities;
(k) To establish by legislative rule in accordance with section ten of this article and to assess reasonable civil
penalties for violations of residential care community standards;
(l) To inspect any residential care community and any of the
records maintained therein, subject to the provisions of section
ten of this article;
(m) To establish legislative rules in accordance with
article three, chapter twenty-nine-a of this code, setting forth
procedures for implementing the provisions of this article,
including informal conferences, investigations and hearings, and
for enforcing compliance with the provisions of this article and
the rules promulgated hereunder;
(n) To subpoena witnesses and documents, administer oaths
and affirmations and examine witnesses. Upon the failure of any
person without lawful excuse to obey a subpoena to give testimony
and upon reasonable notice to all persons affected thereby, the
director may apply to the circuit court of the county in which
the hearing is to be held or to the circuit court of Kanawha
County for an order compelling compliance;
(o) To make a complaint or cause proceedings to be
instituted against any person or persons for the violation of the
provisions of this article or of the rules promulgated hereunder.
An action may be taken by the director in the absence of
concurrence or participation by the prosecuting attorney of the
county in which the proceedings are instituted. The circuit court of Kanawha County or the circuit court of the county in
which the violation has occurred has jurisdiction in any civil
enforcement action brought pursuant to this article and may order
equitable relief. In these cases, the court may not require that
a bond be posted, nor may the director or any person acting under
his or her authority be required to give security for costs;
(p) To delegate authority to his or her employees and agents
in the performance of any power or duty granted in this article,
except the issuance of final decisions in any adjudicatory
matter; and
(q) To submit a report to the governor and the Legislature
on or before the first day of December, one thousand nine hundred
ninety-seven, and annually thereafter, which report shall review
the residential care community licensing and investigatory
activities of the division during the preceding year and the
nature, scope and status of any other activities of the division.
This report may include comment on the actions, policies,
practices or procedures of any public or private agency that may
affect the rights, health or welfare of residents of residential
care communities. These annual reports shall also include a
listing of all licensed residential care communities in the state
together with the following information: Whether a community is
proprietary or nonproprietary; how the community is or should be
classified; the name of the owner or owners; the total number of apartments contained therein; the monthly costs for residents;
the number and profession of full-time employees; the number and
types of recreational programs available to residents; and other
services and programs available to residents, as well as the
costs thereof and whether or not the residential care community
listed accepted medicare/medicaid residents. These reports shall
also contain the division's recommendations with regard to
changes in law or policy which it considers necessary or proper
for the protection of the rights, health or welfare of the
residents of residential care communities within the state.
§16-5N-4. Administrative and inspection staff.
The director may, at any time he or she considers necessary,
employ administrative employees, inspectors, or other persons to
properly implement the provisions of this article. Employees of
the division shall be members of the state civil service system
and shall enforce the provisions of this article and the rules
promulgated hereunder. In discharging their official duties,
employees of the division have the right of entry into any place
maintained as a residential care community.
§16-5N-5. Rules; minimum standards for residential care
communities.
(a) The secretary shall propose all rules that may be
necessary or proper to implement or effectuate the purposes and
intent of this article and to enable the director to exercise the powers and perform the duties conferred herein. All rules
authorized or required pursuant to this article shall be proposed
by the secretary and promulgated in accordance with the
provisions governing legislative rules, contained in article
three, chapter twenty-nine-a of this code.
(b) The secretary shall propose rules establishing minimum
standards for the operation of residential care communities,
including, but not limited to, the following:
(1) Administrative policies, including: (i) An affirmative
statement of the right of access to residential care communities
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 (ii) a statement of the rights and
responsibilities of residents;
(2) Minimum numbers and qualifications of residential care
community personnel according to the size, classification, and
health care needs of the residential care community;
(3) Safety requirements, excluding those fire and life
safety requirements under the jurisdiction of the state fire
marshal pursuant to section nine, article five, chapter sixteen
of this code;
(4) Sanitation requirements;
(5) Protective and personal services required to be provided;
(6) Dietary services required to be provided;
(7) Maintenance of health records, including
confidentiality;
(8) Social and recreational activities required to be made
available;
(9) Physical facilities;
(10) Requirements related to limited and intermittent
nursing care; and
(11) Other items or considerations that the secretary
considers appropriate to ensure the health, safety and welfare of
residents of residential care communities.
(c) The secretary shall propose rules that include detailed
specifications for each category of standards required under
subsections (b) and (d) of this section, and shall classify these
standards as follows:
(1) Class I standards, the violation of which presents
either an imminent danger to the health, safety or welfare of a
resident or a substantial probability that death or serious
physical harm may result;
(2) Class II standards, the violation of which directly
implicates the health, safety or welfare of a resident, but which
does not present imminent danger thereto; and
(3) Class III standards, the violation of which has an indirect or potential impact on the health, safety or welfare of
any resident.
(d) A residential care community shall attain substantial
compliance in every category of standard enumerated in this
section in order to be considered as being in substantial
compliance with the requirements of this article and the rules
promulgated hereunder.
§16-5N-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 residential care community within this state unless
he or she first obtains a license therefor as provided in this
article, 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 residential care
community which is being operated without a valid license from
the director. The procedure for obtaining a license is as
follows:
(a) The applicant shall submit an application to the
director on a form prescribed by the director, containing
information as may be necessary to show that the applicant is in
compliance with the standards for residential care communities as established by this article and the rules 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: (i) Of each
person who, as a stockholder or otherwise, has a proprietary
interest of ten percent or more in the applicant; (ii) of each
officer and director of a corporate applicant; (iii) of each
trustee and beneficiary of an applicant which is a trust; and
(iv) where a corporation has a proprietary interest of twenty- five 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
residential care community or proposed residential care
community, if different from the applicant, and if so, the name
and address: (i) Of each person who, as a stockholder or
otherwise, has a proprietary interest of ten percent or more in
the owner of the premises; (ii) of each officer and director of
a corporate applicant; (iii) of each trustee and beneficiary of
the owner if it is a trust; and (iv) where a corporation has a
proprietary interest of fifty percent or more in the owner, the
name and address of each officer and director of the corporation;
(4) Where the applicant is the lessee or the assignee of the residential care community or the premises of the proposed
residential care community, a signed copy of the lease and any
assignment thereof;
(5) The name and address of the residential care community
or the premises of the proposed residential care community;
(6) The proposed number of apartments in the residential
care community;
(7) (A) An organizational plan for the residential care
community indicating the number of persons employed or to be
employed, and the positions and duties of all employees; (B) the
name and address of the individual who is to serve as
administrator; and (C) evidence of compliance with applicable
laws and rules governing zoning, building, safety, fire
prevention and sanitation, as the director may require; and
(8) Additional information as the director may require.
(b) Upon receipt and review of an application for license
made pursuant to subdivision (a) of this section and inspection
of the applicant pursuant to section ten of this article, the
director shall issue a license if he or she finds:
(1) That an applicant which is an individual and every
partner, trustee, officer, director and person with a controlling
interest 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 residential care community by virtue of financial capacity, appropriate business or professional
experience, a record of compliance with lawful orders of the
department (if any) and a history of nonrevocation of a license
during the five years immediately preceding the application;
(2) That the residential care community is under the
supervision of an administrator qualified for that position by
training and experience; and
(3) That the residential care community is in substantial
compliance with standards established pursuant to section five of
this article, and other requirements as the secretary may
establish by rule under this article.
Any license granted by the director shall state the maximum
number of apartments for which it is granted, the date of
issuance and the date of expiration. Residential care community
licenses shall be issued for a period not to exceed one year:
Provided, That any license which is unexpired, for which timely
application for renewal has been made, together with payment of
the proper fee, as required by the provisions of this article and
the rules promulgated hereunder, continues in effect until: (i)
One year after the original expiration date of the license; (ii)
the date that the license is revoked or suspended pursuant to the
provisions of this article; or (iii) the date of issuance of a
new license, whichever date first occurs. Each license issued is
only for the premises and applicant named in the application and may not be transferred or assigned:
Provided, however, That if
the ownership of a residential care community with an unexpired
license is transferred, the filing of an application for a
license with the director by the new owner shall have the effect
of licensing the operation of the residential care community
under the new owner for a period not to exceed three months.
Every residential care community license shall be displayed in a
conspicuous place at the facility for which it is issued so as to
be accessible to and in plain view of residents and visitors.
(c) An original license may be renewed upon the timely
filing of an application therefor, accompanied by the required
fee and contingent upon the licensee's submission of evidence
satisfactorily demonstrating compliance with the provisions of
this article and the rules promulgated hereunder together with
the following:
(1) A balance sheet as of the end of the residential care
community's fiscal year, setting forth its assets and liabilities
as of that date, including all capital, surplus, reserve,
depreciation and similar accounts;
(2) A statement of operations of the residential care
community as of the end of its fiscal year, setting forth all
revenues, expenses, taxes, extraordinary items and other credits
or charges; and
(3) A statement of any changes in the name, address, management or ownership information on file with the director.
(d) In the case of an application for license renewal, if
all the requirements of section five of this article are not met,
the director may issue a provisional license, provided that care
given in the residential care community is adequate for resident
needs and the residential care community has demonstrated
improvement and evidences potential for substantial compliance
during the term of the provisional license:
Provided, That a
provisional license is effective for a period not to exceed one
year, may not be renewed, and may not be issued to any
residential care community with uncorrected violations of any
Class I standard, as defined in subsection (c), section five of
this article.
(e) A nonrefundable application fee in the amount of sixty- five dollars for an original residential care community license
shall be paid at the time an application for license is made.
The average cost of all direct costs for initial licensure
inspections of all residential care communities for the preceding
year shall be assessed against and paid by the applicant to the
director before an initial or amended license may be issued. The
fee for license renewal shall be computed at the rate of four
dollars per apartment in the community per year:
Provided, That
the rate per apartment may be assessed against applicants for
whom a license is issued for a period of less than one year. The director may annually adjust licensure fees for inflation, based
upon the consumer price index. All license fees are due and
payable to the director, annually, in the manner set forth in the
rules promulgated hereunder. The director shall retain each
application and licensure fee pending final action on the
application. All fees received by the director under the
provisions of this article shall be deposited in accordance with
section thirteen, article one of this chapter.
§16-5N-7. Cost disclosure; residents' funds; nursing care; fire
code.
(a) Each residential care community shall disclose in
writing to all prospective residents a complete and accurate list
of all costs which may be incurred by them as residents of the
community. Residents may not be held liable for any cost that
was not disclosed.
(b) Residential care communities may not manage the personal
finances or funds of its residents.
(c) A residential care community may be required to have
nurses on its staff only if and to the extent it provides limited
and intermittent nursing care.
(d) Residential care communities shall comply with the
applicable provisions of the current edition of the life safety
code as promulgated by the national fire protection association
and adopted by the state fire commission.
§16-5N-8. Investigation of complaints.
The secretary shall by rule establish procedures for the
prompt investigation of all complaints of alleged violations of
applicable requirements of state law or rules by residential care
communities, except those complaints that the director determines
are without any reasonable basis or are made with the sole
intention to willfully harass a licensee. These procedures shall
include provisions for ensuring the confidentiality of the
complainant and of any other person named in the complaint, and
for promptly informing the complainant and the residential care
community involved of the results of the investigation.
If, after its investigation, the director determines that
the complaint has merit, the director shall take appropriate
disciplinary action and shall advise any injured party of the
possibility of a civil remedy under this article.
No residential care community may discharge or in any manner
discriminate or retaliate against any employee or resident for
filing a complaint or participating in any proceeding provided
for in this article. Violation of this prohibition by any
residential care community constitutes grounds for the suspension
or revocation of its license as provided in section eleven of
this article. Any type of adverse action taken by a residential
care community against a resident who has submitted a complaint
to the director or upon whose behalf a complaint has been submitted or who has instituted any proceeding under this
article, if taken within one hundred twenty days of the filing of
the complaint or the institution of the proceeding, shall raise
a rebuttable presumption that the adverse action was taken in
retaliation for filing the complaint or instituting the
proceeding.
§16-5N-9. Inspections.
The director and any duly designated employee or agent
thereof is authorized to enter upon and into the premises of any
residential care community for which a license has been issued,
for which an application for license has been filed, or which the
director has reason to believe is being operated or maintained as
a residential care community without a license. If entry is
refused by the owner or person in charge of the residential care
community, the director shall apply to the circuit court of the
county in which the residential care community is located or the
circuit court of Kanawha County for an order authorizing
inspection, and the court shall issue an appropriate order if it
finds good cause for inspection.
The director, by and through his or her agents or employees,
shall conduct at least one inspection of a residential care
community before issuing a license to it and shall conduct
periodic unannounced inspections thereafter to determine if it is
in compliance with all applicable statutory requirements and rules. All residential care communities shall comply with
applicable rules of the state fire commission. The state fire
marshal, by and through his or her agents or employees, shall
make all fire, safety and similar inspections of residential care
communities. The director may provide for other inspections he
or she considers necessary to effectuate the intent and purpose
of this article. If the director determines upon investigation
that a complaint is substantiated and that an immediate and
serious threat to health or safety exists at a residential care
community, he or she may invoke any remedy available pursuant to
section eleven of this article. Any residential care community
aggrieved by a determination or assessment made pursuant to this
section shall have the right to an administrative appeal as set
forth in section twelve of this article.
§16-5N-10. Reports of inspections; plans of correction;
assessment of penalties, attorneys fees and costs; use of funds derived therefrom; hearings.
(a) Reports of all inspections made pursuant to section nine
of this article shall be in writing and filed with the director,
and shall list all deficiencies in the residential care
community's compliance with the provisions of this article and
the rules promulgated hereunder. The director shall send a copy
of the report to the residential care community and shall specify
a time within which the residential care community shall submit a plan for correction of any listed deficiencies, which plan
shall be approved, rejected or modified by the director.
Inspectors shall allow audio taping of the exit conference that
follows a licensure or certification inspection, with all costs
incurred as a result of the taping to be paid by the residential
care community. A copy of the audio tape shall be provided to
the inspector at the end of taping.
(b) Upon the failure of a residential care community to
submit a plan of correction as required or to correct any
deficiency within the time specified, the director may assess a
civil penalty or initiate other appropriate legal or disciplinary
action, as provided by this article.
(c) Nothing in this section may be construed to require the
director to afford a formal opportunity for a residential care
community to correct a deficiency before initiating an
enforcement action in either an administrative or judicial forum,
where, in the opinion of the director, the deficiency jeopardizes
the health or safety of the community's residents or where the
deficiency is the second or subsequent violation to occur within
a twelve-month period.
(d) Civil penalties assessed against residential care
communities shall be classified according to the nature of the
violation, as provided in subsection (c), section five of this
article and rules promulgated thereunder, consistent with the following: For each violation of a Class I standard, the civil
penalty imposed shall be not less than fifty nor more than five
hundred dollars; for each violation of a Class II standard, the
civil penalty imposed shall be not less than twenty-five nor more
than fifty dollars; for each violation of a Class III standard,
the civil penalty imposed shall be not less than ten nor more
than twenty-five dollars. Each day that a violation continues
after the date of citation constitutes a separate violation. The
date of the citation is the date the facility receives the
written statement of deficiencies.
(e) The director shall assess a civil penalty not to exceed
two thousand dollars against any individual who notifies a
residential care community, or causes it to be notified, in
advance, of the time or date on which an inspection is scheduled
to be conducted under this article.
(f) If the director assesses a penalty under this section,
he or she shall cause a notice of penalty to be delivered to the
residential care community by personal service or by certified
mail. This notice shall state the amount of the penalty, the
action, deficiency or other circumstance for which the penalty is
assessed, the statutory requirement or rule which has been
violated and the basis upon which the director determined the
amount of the penalty.
(g) The director shall recover in a judicial proceeding any civil penalty which: (i) Remains uncontested and unpaid for
thirty days after its receipt; or (ii) if contested, has been
affirmed by the director and remains unappealed for thirty days
after receipt of the director's final order; or (iii) if
appealed, has been affirmed upon judicial review of the
director's final order. All funds received in the form of civil
penalties or interest thereon pursuant to this article shall be
deposited in a special resident benefit account which is hereby
established and applied by the director exclusively for the
protection of the health or property of residents of residential
care communities operated within this state that the director
determines to be deficient, which may include payment of costs to
relocate residents of a deficient residential care community to
other facilities, operation costs of a residential care community
pending correction of deficiencies or closure, and reimbursement
of residents for personal funds lost.
(h) The opportunity for a hearing on any action taken under
this section is as provided in section twelve of this article.
In addition to any other rights of appeal conferred upon a
residential care community under this section, it may also
request a hearing and seek judicial review pursuant to sections
twelve and thirteen of this article to contest the director's
citing of a deficiency in an inspection report, irrespective of
whether the deficiency results in the imposition of a civil penalty.
§16-5N-11. License limitation, suspension and revocation;
ban on admissions; continuation of
disciplinary proceedings; closure, transfer of residents, appointment of temporary management; assessment of interest; collection of assessments; hearing.
(a) The director shall by order impose a ban on the
admission of additional residents or reduce the number of
apartments permitted in a residential care community, or any
combination thereof, where it is determined upon inspection that
a licensee is not providing adequate care to its residents under
its existing quota and, further, that a reduction in the quota or
the imposition of a ban on additional admissions, or a
combination thereof, would enable the licensee to render adequate
care to its residents. A notice to a licensee of a reduction in
its quota or a ban on additional admissions shall include the
terms of the order, the reasons therefor, and the date by which
it must comply.
(b) The director may suspend or revoke a license issued
under this article if it is determined upon inspection that there
has been a substantial failure to comply with the provisions of
this article or the standards or rules promulgated hereunder.
(c) Whenever a license is limited, suspended or revoked
pursuant to this section, the director shall file an
administrative complaint stating facts constituting the grounds therefor. Upon the filing of this administrative complaint, the
director shall notify the licensee in writing, enclose a copy of
the administrative complaint, and advise the licensee of its
opportunity for a hearing pursuant to section twelve of this
article. The notice and copy of the administrative complaint
shall be served on the licensee by certified mail, return receipt
requested.
(d) The suspension, revocation or expiration of a license,
or the withdrawal of an application for a license after it has
been filed with the director, may not deprive the director of his
or her authority to institute or continue a disciplinary
proceeding or to deny an application for a license.
(e) In addition to other remedies provided in this article,
upon petition from the director, a circuit court may determine
that a residential care community's deficiencies under this
article constitute an emergency immediately jeopardizing the
health, safety, welfare, or rights of its residents, and issue an
order to:
(1) Close the residential care community;
(2) Transfer residents of the residential care community to
other facilities; or
(3) Appoint a temporary manager to oversee the operation of
the residential care community and to assure the health, safety,
welfare and rights of the residential care community's residents, where there is a need for temporary management while:
(A) There is an orderly closure of the residential care
community; or
(B) Corrections are made in order to bring the residential
care community into compliance with all applicable requirements
of this article and the rules promulgated hereunder.
If the director petitions a circuit court for the closure of
a residential care community, for the transfer of residents, or
for the appointment of a temporary manager, the circuit court
shall hold a hearing no later than seven days thereafter, at
which time the director and the licensee or operator of the
residential care community may participate and present evidence.
A circuit court may divest the licensee or operator of
possession and control of a residential care community in favor
of temporary management. The temporary management is accountable
to the court and has those powers and duties that 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, including, but not limited to, replacing
managerial and other staff, hiring consultants, making necessary
expenditures to close the residential care community or to repair
or improve the residential care community so as to return it to
compliance with applicable requirements, and receiving,
conserving and expending funds, including making payments on behalf of the licensee or operator. Priority in making payments
shall be given to expenditures for current direct resident care
and the transfer of residents, if necessary.
The person charged with temporary management shall be an
officer of the court and paid by the residential care community
if resources are available. He or she may not be held liable in
any capacity for conditions at the residential care community
that originated or existed before his or her appointment nor may
he or she be held personally liable for any act or omission,
except those constituting gross negligence or intentional acts
that result in injuries to persons or damage to property during
his or her tenure as temporary manager.
It is unlawful for any person to impede the operation of
temporary management as appointed by the court. For ninety days
after the appointment of temporary management at a residential
care community, any legal action that would interfere with its
functioning or operation shall be automatically stayed. These
actions include, but are not limited to, cancellation of
insurance policies, termination of utility services, attachments
to working capital accounts, foreclosures, evictions and
repossessions of equipment used in the residential care
community.
Temporary management appointed by the court for purposes of
making improvements to bring a residential care community into compliance with applicable requirements may not be terminated
until the court has determined that the residential care
community has the management capability to ensure continued
compliance with all applicable requirements:
Provided, That if
the court does not make such a determination within six months of
the appointment of the temporary management, the temporary
management terminates by operation of law at that time, and the
residential care community shall be closed. After the
termination of the temporary management, the person who was
appointed as the temporary management shall make an accounting to
the court, and after deducting the costs of the temporary
management, expenditures and civil penalties and interest no
longer subject to appeal, in that order, from receipts, the
remainder, if any, shall be paid to the licensee or operator of
the residential care community.
(f) Assessments for civil penalties and costs of actions
taken under this article, including attorney fees, shall accrue
interest at the rate of five percent per annum, beginning on the
thirtieth day after receipt of notice of the assessment or the
thirtieth day after receipt of the director's final order
following a hearing, whichever later occurs. All assessments
against a residential care community that remain unpaid shall be
added to its licensure fee next due and may be filed as a lien
against the property of the licensee or operator of the residential care community. Funds received from these
assessments shall be deposited in the same manner as are funds
received pursuant to section ten of this article.
(g) The secretary is authorized to propose emergency rules,
if necessary, to expand the powers of the director beyond those
provided in this article, to the extent required to comply with
federal requirements:
Provided, That the director's powers may
be expanded only to the extent required by federal requirements.
Emergency rules proposed pursuant to this subsection are subject
to the provisions governing legislative rules contained in
article three, chapter twenty-nine-a of this code.
(h) The opportunity for a hearing on any action taken by the
director under this section is as provided in section twelve of
this article.
§16-5N-12. Administrative appeals from civil penalty assessment,
license limitation, suspension or revocation.
(a) Any licensee or applicant aggrieved by an order issued
pursuant to section five, six, ten or eleven of this article
shall, upon timely written request, be afforded an opportunity
for a hearing by the director at which the order may be contested
as contrary to law, unwarranted by the facts, or both. The
provisions of article five, chapter twenty-nine-a of this code
governing contested cases apply to and govern hearings conducted
pursuant to this section and the administrative procedures in connection therewith. A licensee or applicant may also request
an informal meeting with the director before requesting a
hearing.
After a hearing conducted pursuant to this section, the
director shall make and enter a written order either dismissing
the complaint or taking whatever action is authorized and
appropriate pursuant to this article. This written order shall
be served upon the licensee and his or her attorney of record, if
any, by certified mail, return receipt requested, accompanied by
the director's findings of fact and conclusions of law as
specified in section three, article five, chapter twenty-nine-a
of this code. If the director suspends a residential care
community's license, the order directing the suspension shall
specify the grounds for the suspension and the time by which the
conditions or circumstances giving rise to the suspension must be
corrected in order for the licensee to be entitled to
reinstatement of its license. If the director revokes a license,
he or she may stay the effective date of the revocation upon a
showing that a delay is necessary to assure appropriate placement
of the licensee's residents:
Provided, That the effective date
of revocation may not be stayed for more than ninety days. The
director's order is final unless it is vacated, reversed or
modified by the court upon judicial review in accordance with the
provisions of section thirteen of this article.
(b) In addition to all other powers granted by this chapter,
the director may take a case under advisement and make a
recommendation as to requirements to be met by a licensee in
order to avoid suspension or revocation of its license. In these
cases, the director shall enter an appropriate order and notify
the licensee and its attorney of record, if any, by certified
mail, return receipt requested. If the licensee meets the
requirements of this order, the director shall enter a subsequent
order taking notice of the licensee's satisfactory compliance and
dismissing the complaint. This order shall also be delivered to
the licensee and its attorney of record, if any, by certified
mail, return receipt requested.
§16-5N-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 apply to and
govern these proceedings with like effect as if those provisions
were set forth in extenso herein.
The judgment of the circuit court is final unless reversed,
vacated or modified on appeal to the supreme court of appeals in
accordance with the provisions of section one, article six,
chapter twenty-nine-a of this code.
§16-5N-14. Legal counsel and services for the director.
(a) Legal counsel and legal services for the director in all
administrative hearings 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, an attorney employed
by the director or, in proceedings in any circuit court, by the
prosecuting attorney of the county wherein the action is
instituted, all without additional compensation.
(b) The governor may appoint counsel for the director, who
shall perform legal services in representing the interests of
residents in residential care communities in matters under the
jurisdiction of the director, as the governor shall direct. It
is the duty of counsel so appointed to appear for the residents
in all cases where they are not represented by counsel. The
compensation of counsel so appointed shall be fixed by the
governor.
§16-5N-15. Unlawful acts; penalties; injunctions; private right
of action.
(a) Whoever advertises, announces, establishes or maintains,
or is engaged in establishing or maintaining a residential care
community without a license granted under section six of this
article, 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 one hundred dollars, or by
confinement in the regional or county jail for a period of not
more than ninety days, or both, in the discretion of the court.
For a second or subsequent offense, the fine may be increased to
not more than two hundred fifty dollars, with confinement in the
regional or county jail for a period of not more than ninety
days, or both, in the discretion of the court. Each day that a
violation continues after conviction therefor constitutes a
separate offense.
(b) The director may bring an action to enforce compliance
with this article, any rule promulgated hereunder, or order
issued hereunder, whenever it appears to the director that a
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 that a person has aided,
abetted, or caused, or is aiding, abetting or causing such an act
or practice. Upon application by the director, the circuit court
of the county in which the conduct has occurred or is occurring
has jurisdiction to grant without bond a permanent or temporary
injunction, decree or restraining order.
Whenever the director has refused to grant or renew a
license, revoked a license that is required to operate a
residential care community, or ordered a person to refrain from
actions that violate the rules promulgated pursuant to this article, and the person has appealed the action of the director,
the court may, during the pendency of the appeal, issue a
restraining order or injunction upon proof that the operation of
the residential care community or its failure to comply with the
order of the director adversely affects the well-being or safety
of the residents of the residential care community. Should a
person who appeals an order of the director fail to appear or
should the appeal be decided in favor of the director, the court
shall issue a permanent injunction upon proof that the person is
operating or conducting a residential care community without a
license as required by law, or has continued to violate the rules
promulgated pursuant to this article.
(c) Any residential care community that deprives a resident
of any right or benefit created or established for the well-being
of the resident by the terms of any contract, any state statute
or rule, or by any applicable federal statute or regulation, is
liable to that resident in a civil action for any injuries
suffered as a result of the deprivation. Upon a finding that a
resident has been deprived of a right or benefit and suffered an
injury thereby, compensatory damages shall be assessed in an
amount sufficient to compensate the resident for the injury,
unless there is a finding that the residential care community
exercised due care reasonably necessary to prevent and limit the
deprivation and injury to the resident. In addition, if the deprivation by a residential care community of a right or benefit
is found to have been willful or in reckless disregard, 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 available administrative remedies may not be required prior to
commencing an action hereunder.
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 article four, chapter nine of this code, and may
not be taken into consideration or required to be applied toward
the payment or part payment of the cost of medical care or
services available under that article.
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 null and void as contrary to public
policy.
(d) The penalties and remedies provided in this section are
cumulative and are in addition to all other penalties and
remedies provided by law.
§16-5N-16. Availability of reports and records.
The director shall make available for public inspection and
provide copies at a nominal cost of all inspection reports and other reports of residential care communities filed with or
issued by the director. Nothing contained in this section may be
construed to allow the public disclosure of confidential medical,
social, personal or financial records of any resident. The
secretary shall adopt rules that are reasonably necessary to
effectuate to the provisions of this section and preserve the
confidentiality of medical, social, personal or financial records
of residents.
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