Engrossed Version
Senate Bill 663 History
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ENGROSSED
Senate Bill No. 663
(By Senators Caldwell, Snyder and Kessler)
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[Introduced February 23, 2004; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §16-5C-15 of the code of West Virginia,
1931, as amended; to amend and reenact §16-5D-15 of said code;
to amend said code by adding thereto a new section, designated
§16-5E-7; and to amend and reenact §16-5N-15 of said code, all
relating to protection of the elderly generally; prohibiting
certain long-term care and assisted living facilities from
soliciting or coercing residents into giving them money or
other assets; and establishing penalties.
Be it enacted by the Legislature of West Virginia:
That §16-5C-15 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §16-5D-15
of said code be amended
and reenacted; that said code be amended by adding thereto a new
section, designated §16-5E-7; and that
§16-5N-15
of said code be
amended and reenacted, all to read as follows:
ARTICLE 5C. NURSING HOMES.
§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 section six of this article or who
prevents, interferes with or impedes in any way the lawful
enforcement of this article shall be 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
imprisonment imprisoned in the county or regional jail for a period
of not more than ninety days, or by both such fine fined and
imprisonment imprisoned, at the discretion of the court. For each
subsequent offense, the fine may be increased to not more than two
hundred fifty dollars, with imprisonment in the county or regional
jail for a period of not more than ninety days, or by both such
fine fined and imprisonment imprisoned, at the discretion of the
court. Each day of a continuing violation after conviction shall
be considered a separate offense.
(b) No employee, officer, volunteer or agent of a nursing home
facility may request, solicit, coerce, entice or otherwise request
or demand that a resident or the family or legal guardian of a
resident leave to the residential care community or its employees,
officers or agents any money, real, personal or mixed property or
other thing of value by gift, will or trust. Any money, real,
personal or mixed property or other thing of value so obtained
shall be returned to the resident or his or her estate and the gift, will or trust is void and unenforceable. In addition to any
other remedy provided by law, any person convicted of violating
this subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than ten nor more than twenty years.
(b) (c) The director may in his or her discretion bring an
action to enforce compliance with this article or any rule or order
hereunder whenever it shall appear to the director 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
shall appear to the director that any 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, or if emergency
circumstances occur, the circuit court of Kanawha County, shall
have jurisdiction to grant without bond a permanent or temporary
injunction, decree or restraining order.
(d) Whenever the director shall have refused to grant or renew
a license, or shall have revoked a license required by law to
operate or conduct a nursing home, or shall have ordered a person
to refrain from conduct violating the rules of the director, and
the person deeming himself or herself aggrieved by such refusal or
revocation or order shall have appealed the action of the director,
the court may, during pendency of such 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
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,
fail to appeal or should such appeal be decided favorably to the
director, 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.
(c) (e) 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
any such 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 may not be required prior to
commencement of suit hereunder.
(f) The amount of damages recovered by a resident, in an
action brought pursuant to this section, shall be exempt for
purposes of determining initial or continuing eligibility for
medical assistance under article four, chapter nine 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 said article.
(g) 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, shall be null and void as
contrary to public policy.
(d) (h) The penalties and remedies provided in this section
are cumulative and shall be in addition to all other penalties and
remedies provided by law.
§16-5D-15. Unlawful acts; penalties; injunctions; private right of
action.
(a) Whoever advertises, announces, establishes or maintains or
is engaged in establishing or maintaining an assisted living
residence 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 shall be 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
imprisonment imprisoned in jail for a period of not more than
ninety days, or by both such fine fined and imprisonment
imprisoned, at the discretion of the court. For each subsequent
offense, the fine may be increased to not more than two hundred
fifty dollars, with imprisonment in jail for a period of not more
than ninety days, or both such fine fined and imprisonment
imprisoned at the discretion of the court. Each day of a
continuing violation after conviction shall be considered a
separate offense.
(b) No employee, officer, volunteer or agent of an assisted
living residence may request, solicit, coerce, entice or otherwise
request or demand that a resident or the family or legal guardian
of a resident leave to the residential care community or its
employees, officers or agents any money, real, personal or mixed
property or other thing of value by gift, will or trust. Any
money, real, personal or mixed property or other thing of value so
obtained shall be returned to the resident or his or her estate and
the gift, will or trust is void and unenforceable. In addition to
any other remedy provided by law, any person convicted of violating
this subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than ten nor more than twenty years.
(b) (c) The 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 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 secretary
that any person has aided,
abetted or caused or is aiding, abetting or causing such an act or
practice. Upon application by the secretary, the circuit court of
the county in which the conduct has occurred or is occurring shall
have jurisdiction to grant without bond a permanent or temporary
injunction, decree or restraining order.
(c) (d) Whenever the secretary
refuses to grant or renew a
license or revokes a license required by law to operate or conduct
an assisted living residence or orders a person to refrain from
conduct violating the rules of the secretary and the person deeming
himself or herself aggrieved by the refusal, revocation or order
appeals the action of the secretary
, the court may, during pendency
of the appeal, issue a restraining order or injunction upon proof
that the operation of the assisted living residence or its failure
to comply with the order of the secretary
adversely affects the
well-being or safety of the residents of the assisted living
residence. Should a person who is refused a license or the renewal
of a license to operate or conduct an assisted living residence or
whose license to operate is revoked or who has been ordered to
refrain from conduct or activity which violates the rules of the secretary, fail to appeal or should such appeal be decided
favorably to the secretary
, then the court shall issue a permanent
injunction upon proof that the person is operating or conducting an
assisted living residence without a license as required by law or
has continued to violate the rules of the secretary.
(d) (e) Any assisted living residence 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, 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 the
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 the deprivation and unless there is a finding that the
assisted living residence 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 the injury. In addition, where the
deprivation of any 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 may not be
required prior to commencement of suit hereunder.
(e) (f) The amount of damages recovered by a resident, in an action brought pursuant to this section, are exempt for purposes of
determining initial or continuing eligibility for medical
assistance under article four, chapter nine 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 said article.
(f) (g) 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, shall be null and void as
contrary to public policy.
(g) (h) The penalties and remedies provided in this section
are cumulative and shall be in addition to all other penalties and
remedies provided by law.
ARTICLE 5E. REGISTRATION AND INSPECTION OF SERVICE PROVIDERS IN
LEGALLY UNLICENSED HEALTH CARE HOME
.
§16-5E-7. Unlawful acts.
No employee, officer, volunteer or agent of a legally
unlicensed health care home may request, solicit, coerce, entice or
otherwise request or demand that a resident or the family or legal
guardian of a resident leave to the residential care community or
its employees, officers or agents any money, real, personal or
mixed property or other thing of value by gift, will or trust. Any
money, real, personal or mixed property or other thing of value so
obtained shall be returned to the resident or his or her estate and
the gift, will or trust is void and unenforceable. In addition to any other remedy provided by law, any person convicted of violating
this subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than ten nor more than twenty years.
§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
imprisoned in the regional or county jail for a period of not more
than ninety days, or both fined and imprisoned, 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 fined and imprisoned, in the discretion
of the court. Each day that a violation continues after conviction
therefor constitutes a separate offense.
(b) No employee, officer, volunteer or agent of a residential
care community may request, solicit, coerce, entice or otherwise
request or demand that a resident or the family or legal guardian
of a resident leave to the residential care community or its employees, officers or agents any money, real, personal or mixed
property or other thing of value by gift, will or trust. Any
money, real, personal or mixed property or other thing of value so
obtained shall be returned to the resident or his or her estate and
the gift, will or trust is void and unenforceable. In addition to
any other remedy provided by law, any person convicted of violating
this subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than ten nor more than twenty years.
(b) (c) 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.
(d) 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) (e) 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
any available administrative remedies may not be required prior to
commencing an action hereunder.
(f) The amount of damages recovered by a resident, in an
action brought pursuant to this section, shall be exempt for
purposes of determining initial or continuing eligibility for
medical assistance under article four, chapter nine 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 said article.
(g) 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) (h) The penalties and remedies provided in this section
are cumulative and are in addition to all other penalties and
remedies provided by law.
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