FISCAL
NOTE
WEST virginia Legislature
2017 regular session
By
[
to the Committee on Health and Human Resources then Government Organization
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new article, designated
§16-5Z-1, §16-5Z-2, §16-5Z-3, §16-5Z-4, §16-5Z-5, §16-5Z-6, §16-5Z-7, §16-5Z-8
and §16-5Z-9, all relating to establishing a program for the licensing and
regulation of out-patient substance abuse counseling programs; defining terms;
specifying requirements and procedures to be licensed; establishing operational
requirements and minimum qualifications for professional staff; providing for
inspections with and without warrants; authorizing limitations, denials,
suspensions and revocations of licenses for noncompliance with law; describing
types of violations; providing for civil penalties to be ordered; requiring
notification of violations of professional license violations to appropriate
licensing authorities; and granting rule-making authority to the Secretary of
the Department of Health and Human Resources.
Be it enacted by the
Legislature of West Virginia:
That
the Code of West Virginia, 1931, as amended, be amended, by adding thereto a
new article, designated §16-5Z-1, §16-5Z-2, §16-5Z-3, §16-5Z-4, §16-5Z-5, §16-5Z-6,
§16-5Z-7, §16-5Z-8 and §16-5Z-9, all to read as follows:
ARTICLE 5G. Licensing
of Out-patient Substance Abuse Counseling programs.
§16-5Z-1. Purpose.
The purpose of this article
is to establish licensing and registration requirements for facilities that
provide counseling, behavioral therapy and recovery services for clients with
substance use disorders to promote effective care and assistance and to prevent
exploitation of those afflicted with substance abuse disorders and related
social consequences.
§16-5Z-2.
Definitions.
(a) “Advanced alcohol
and drug abuse counselor” means an alcohol and drug abuse counselor who is
certified by the West Virginia Certification Board for Addiction and Prevention
Professionals who demonstrates a high degree of competence in the addiction
counseling field.
(b)
“Alcohol and drug abuse counselor” means a counselor certified by the West
Virginia Certification Board for Addiction and Prevention Professionals for
specialized work with patients who have substance use problems.
(c)
“Biopsychosocial” means of, relating to, or concerned with, biological,
psychological and social aspects in contrast to the strictly biomedical aspects
of disease.
(d)
“Center for Substance Abuse Treatment” means the center under the Substance
Abuse and Mental Health Services Administration that promotes community-based
substance abuse treatment and recovery services for individuals and families in
the community and provides national leadership to improve access, reduce
barriers and promote high quality, effective treatment and recovery services.
(e)
“Director” means the Director of the Office of Health Facility Licensure and
Certification.
(f)
“Governing body” means the person or persons identified as being legally
responsible for the operation of the substance abuse counseling program and may
be a board, a single entity or owner, or a partnership.
(g)
“Medication-assisted treatment” means the use of medications and drug screens,
in combination with counseling and behavioral therapies, for the treatment of
substance use disorders.
(h)
“Owner” means any person, partnership, association or corporation listed as the
owner of a substance abuse counseling program on the licensing or registration
forms required by this article.
(i)
“Program sponsor” means the person named in the application for the
certification and licensure of a substance abuse counseling program who is
responsible for the administrative operation of the program, and who assumes
responsibility for all of its employees, including any practitioners, agents or
other persons providing rehabilitative or counseling services through the
program.
(j)
“Secretary” means the Secretary of the West Virginia Department of Health and
Human Resources or his or her designee.
(k)
“State oversight agency” means the agency or office of state government
identified by the secretary to provide regulatory oversight of substance abuse
counseling treatment programs on behalf of the State of West Virginia.
(l)
“Substance” means the following:
(1)
Alcohol;
(2)
Controlled substances defined by section two hundred four, article two, chapter
sixty-a; section two hundred six, article two, chapter sixty-a; section two
hundred eight, article two, chapter sixty-a and section two hundred ten,
article two, chapter sixty-a of this code; or
(3) Any
chemical, gas, drug or medication consumed which causes clinically and
functionally significant impairment, such as health problems, disability and
failure to meet major responsibilities at work, school or home.
(m)
“Substance Abuse and Mental Health Services Administration” means the agency
under the United States Department of Health and Human Services responsible for
the accreditation and certification of substance abuse counseling programs and
that provides leadership, resources, programs, policies, information, data,
contracts and grants for the purpose of reducing the impact of substance abuse
and mental or behavioral illness.
(n)
“Substance abuse counseling program” means any out-patient program or service
with a principal purpose of treatment of substance abuse disorders through
clinical counseling procedures, for a fee or other valuable consideration, and
which is not a medication-assisted treatment program, an opioid treatment
program or any program of peer support and discussion meetings organized by
volunteers.
(o)
“Variance” means written permission granted by the secretary to a
medication-assisted treatment program that a requirement of this article or
rules promulgated pursuant to this article may be accomplished in a manner
different from the manner set forth in this article or associated rules.
(p)
“Waiver” means a formal, time-limited agreement between the designated
oversight agency and the medication-assisted treatment program that suspends a
rule, policy or standard for a specific situation so long as the health and
safety of patients is better served in the situation by suspension of the rule,
policy or standard than by enforcement.
§16-5Z-3. Substance
abuse counseling programs to obtain license; application; fees and inspections.
(a) No person,
partnership, association or corporation may operate a substance abuse
counseling program without first obtaining a license from the secretary in
accordance with the provisions of this article and the rules lawfully
promulgated pursuant to this article.
(b) Any person,
partnership, association or corporation desiring a license to operate a
substance abuse counseling program in this state shall file with the Office of
Health Facility Licensure and Certification an application in such form and
with such information as the secretary shall prescribe and furnish accompanied
by an application fee.
(c) The Director of the
Office of Health Facility Licensure and Certification or his or her designee
shall inspect each facility and review all documentation submitted with the
application. The director shall then
provide a recommendation to the secretary whether to approve or deny the
application for a license. The secretary shall issue a license if the facility
is in compliance with the provisions of this article and with the rules
lawfully promulgated pursuant to this article.
(d)
A license shall be issued in one of three categories:
(1)
An initial twelve-month license shall be issued to a substance abuse counseling
program establishing a new program or service for which there is insufficient
consumer participation to demonstrate substantial compliance with this article
and with all rules promulgated pursuant to this article;
(2)
A provisional license shall be issued when a substance abuse counseling program
seeks a renewal license, or is an existing program as of the effective date of
this article and is seeking an initial license, and the substance abuse
counseling program is not in substantial compliance with this article and with
all rules promulgated pursuant to this article, but does not pose a significant
risk to the rights, health and safety of a consumer. It shall expire not more than six months from
the date of issuance, and may not be consecutively reissued; or
(3)
A renewal license shall be issued when a substance abuse counseling program is
in substantial compliance with this article and with all rules promulgated
pursuant to this article. A renewal license shall expire not more than one year
from the date of issuance.
(e) At least sixty days
prior to the license expiration date, an application for renewal shall be
submitted by the owner or program sponsor of the substance abuse counseling
program to the secretary on forms furnished by the secretary. A license shall be renewed if the secretary
determines that the applicant is in compliance with this article and with all
rules promulgated pursuant to this article.
A license issued to one program location pursuant to this article
is not transferrable or assignable. Any
change of ownership of a licensed substance abuse counseling program requires
submission of a new application. The substance abuse counseling program shall
notify the secretary of any change in ownership within ten days of the change
and must submit a new application within the time frame prescribed by the
secretary.
(f)
Any person, partnership, association or corporation that seeks to obtain or
renew a license for a substance abuse counseling program in this state must
submit to the secretary the following documentation:
(1)
Full operating name of the program
as advertised;
(2) Legal name of the
program as registered with the West Virginia Secretary of State;
(3) Physical address of
the program;
(4) Preferred mailing
address for the program;
(5) Email address to be
used as the primary contact for the program;
(6) Federal Employer
Identification Number assigned to the program;
(7) All business licenses
issued to the program by this state, the state Tax Department, the Secretary of
State and all other applicable business entities;
(8) Brief description of
all services provided by the program;
(9) Hours of operation;
(10) Legal Registered
Owner Name – name of the person registered as the legal owner of the
program. If more than one legal owner (i.e., partnership, limited
liability corporation, etc.) list each legal owner separately, indicating the
percentage of ownership;
(11) The name and
professional qualifications of the program sponsor;
(12) For each employee
of the program, provide the following:
(A) Employee’s role and
occupation within the program;
(B) Full legal name; and
(C) Professional
license, if applicable;
(13) Name and location
address of all programs owned or operated by the applicant;
(14) Check or money
order for licensing fee and inspection fee;
(15) Verification of
education and training for all psychologists, counselors and social workers
practicing at or used by referral by the program, including fellowships,
additional education, accreditations, board certifications and other
certifications;
(16) A notarized
statement of the program sponsor or owner’s representative attesting to the
truth of the contents of the application.
(g) Upon satisfaction that an
applicant has met all of the requirements of this article, the secretary shall
issue a license to operate a substance abuse counseling program.
(h)
The substance abuse counseling program shall display the current license in a prominent
location where services are provided and in clear view of all clients.
(i) The secretary or his
or her designee shall inspect on a periodic basis all substance abuse
counseling programs that are subject to this article and all rules adopted
pursuant to this article to ensure continued compliance.
(j) Any license in
effect at the time of the passage of this section in the 2017 regular session
of the Legislature shall remain in effect until such time as new legislative
rules promulgated pursuant to this article become effective. Upon the effective date of the new rules any
licensee shall file for a new license within six months pursuant to the
licensing procedures and requirements of this section and the new rules
promulgated hereunder. The existing license shall remain effective until
receipt of the new license.
§16-5Z-4. Operational
requirements.
(a) The substance abuse
counseling program shall be licensed and registered in this state with the
secretary, the Secretary of State, the state Tax Department and all other
applicable business or licensing entities.
(b) Each substance abuse
counseling program shall designate counseling staff, either employees or those
used on a referral-basis by the program, who meet the requirements of this article
and the rules promulgated pursuant to this article. The individual members of
the counseling staff shall have one or more of the following qualifications:
(1) A licensed
psychologist;
(2) Certification as an
alcohol and drug counselor;
(3) Certification as an
advanced alcohol and drug counselor;
(4) A counselor,
marriage and family therapist or social worker with a master’s level education
with a specialty or specific training in treatment for substance use disorders,
as further described in the rules promulgated pursuant to this article;
(5) Under the direct
supervision of an advanced alcohol and drug counselor, a counselor with a
bachelor’s degree in social work or another relevant human services field: Provided, That the individual practicing
with a bachelor’s degree under supervision applies for certification as an
alcohol and drug counselor within three years of the date of employment as a
counselor; or
(6) A counselor with a
graduate degree actively working toward licensure or certification in the
individual’s chosen field under supervision of a licensed or certified
professional in that field and/or advanced alcohol and drug counselor.
(c) The substance abuse
counseling program shall be eligible for, and not prohibited from, enrollment with
West Virginia Medicaid and other private insurance. Prior to directly billing a client for any
substance abuse counseling, a substance abuse counseling program must receive
either a rejection of prior authorization, rejection of a submitted claim, or a
written denial from a client’s insurer or West Virginia Medicaid denying
coverage for such treatment: Provided,
That the Secretary may grant a variance from this requirement pursuant to
section five of this article. The
program shall also document whether a client has no insurance. At the option of the substance abuse
counseling program, treatment may commence prior to billing.
(d) All persons employed
by the substance abuse counseling program shall comply with the requirements
for the operation of a substance abuse counseling program established within
this article or by any rule adopted pursuant to this article.
(e) The substance abuse
counseling program shall not be owned by, nor shall it employ or associate
with, any physician or prescriber:
(1) Whose Drug
Enforcement Administration number is not currently full, active and
unencumbered;
(2) Whose application
for a license to prescribe, dispense or administer a controlled substance has
been denied by a controlled substance permitting authority of any state,
district or territory of the United States and is not full, active and
unencumbered in any jurisdiction; or
(3) Whose license is
anything other than a full, active and unencumbered license to practice
allopathic medicine or surgery by the West Virginia Board of Medicine or
osteopathic medicine or surgery by the West Virginia Board of Osteopathic
Medicine in this state, and, who is in good standing and not under any
probationary restrictions.
(f) Each substance abuse
counseling program location shall be licensed separately, regardless of whether
the program is operated under the same business name or management as another
program.
(g) The substance abuse
counseling program shall develop and implement client protocols, treatment
plans or treatment strategies and profiles, which shall include, but not be
limited by, the following guidelines:
(1) The substance abuse
counseling program shall maintain a record of all of the following:
(A) Medical history of
the individual;
(B) The diagnosis of
substance use disorder of the individual;
(C) The plan of
treatment proposed, the client’s response to the treatment and any modification
to the plan of treatment;
(E) A copy of the report
made by the physician or counselor to whom referral for evaluation or
counseling was made, if applicable; and
(F) A copy of the
coordination of care agreement, which is to be signed by the client and the
primary counselor for the client. If a
change of primary counselor takes place, a new agreement must be signed. The coordination of care agreement must be
updated or reviewed at least annually.
If the coordination of care agreement is reviewed, but not updated, this
review must be documented in the client’s record. The coordination of care agreement will be
provided in a form prescribed and made available by the secretary;
(2) Substance abuse
counseling programs shall report information, data, statistics and other
information as directed in this code, and the rules promulgated pursuant to
this article to required agencies and other authorities; and
(3) An alcohol and drug
abuse counselor, an advanced alcohol and drug abuse counselor or other
qualified counselor, psychiatrist, psychologist or social worker shall perform
a biopsychosocial assessment, including, but not limited to, a mental status
examination of a client within seven days prior, or subsequent, to the
initiation of counseling services.
§16-5Z-5.
Restrictions; variances and waivers.
(a) A substance abuse
counseling program shall not be located, operated, managed or owned at the same
location where a chronic pain management clinic licensed and defined in article
five-h, chapter sixteen of this code is located.
(b) Substance abuse
counseling programs shall not have procedures for offering a bounty, monetary,
equipment, or merchandise reward, or free services for individuals in exchange
for recruitment of new clients into the facility.
(c) Substance abuse
counseling programs shall not be located within one-half mile of a public or
private licensed day care center or public or private K-12 school. However, existing substance abuse counseling
programs that are located within one-half mile of a public or private licensed
day care center or public or private K-12 school, shall be granted a variance: Provided, That the facility demonstrates
adequate client population controls and that it may otherwise meet the
requirements of this article and the rules promulgated pursuant to this
article.
(d) The secretary may
grant a waiver or a variance from any licensure or registration standard, or
portion thereof, for the period during which the license or registration is in
effect.
(1) Requests for waivers
or variances of licensure or registration standards shall be in writing to the
secretary and shall include:
(A) The specific section
of this article or rules promulgated pursuant to this article for which a
waiver or variance is sought;
(B) The rationale for
requesting the waiver or variance;
(C) Documentation by the
substance abuse counseling program’s medical director to the secretary that
describes how the program will maintain the quality of services and client
safety if the wavier or variance is granted; and
(D) The consequences of
not receiving approval of the requested wavier or variance.
(2) The secretary shall
issue a written statement to the substance abuse counseling program granting or
denying a request for a waiver or variance of program licensure or registration
standards.
(3) The substance abuse
counseling program shall maintain a file copy of all requests for waivers or
variances and the approval or denial of the requests for the period during
which the license or registration is in effect.
(4) The Office of Health
Facility Licensure and Certification shall inspect each substance abuse
counseling program prior to a waiver or variance being granted, including a
review of client records, to ensure and verify that any waiver or variance
request meets the spirit and purpose of this article and the rules promulgated
pursuant to this article. The Office of
Health Facility Licensure and Certification may verify, by unannounced
inspection, that the substance abuse counseling program is in compliance with
any waiver or variance granted by the secretary for the duration of such waiver
or variance.
§16-5Z-6. Inspection; inspection warrant.
(a) The Office of Health
Facility Licensure and Certification shall inspect each substance abuse
counseling program annually, including a review of the client records, to
ensure that the program complies with this article and the applicable
rules.
(b) During an onsite
inspection, the inspectors shall make a reasonable attempt to discuss each
violation with the program sponsor or owner of the substance abuse counseling
program before issuing a formal written notification.
(c) Any action taken to
correct a violation shall be documented in writing by the program sponsor or
owner of the substance abuse counseling program and may be verified by
follow-up visits by the Office of Health Facility Licensure and Certification.
(d) Notwithstanding the
existence or pursuit of any other remedy, the secretary may, in the manner
provided by law, maintain an action in the name of the state for an inspection
warrant against any person, partnership, association or corporation to allow
any inspection or seizure of records in order to complete any inspection
allowed by this article or the rules promulgated pursuant to this article, or
to meet any other purpose of this article or the rules promulgated pursuant to
this article.
§16-5Z-7.
License and registration limitation; denial; suspension; revocation.
(a) The secretary may,
by order, impose a ban on the admission of new clients or reduce the client
capacity of the substance abuse counseling program, or any combination thereof,
when he or she finds upon inspection of the substance abuse counseling program
that the licensee or registrant is not providing adequate care under the
substance abuse counseling program’s existing client base, and that a reduction
in client base or imposition of a ban on admissions, or any combination
thereof, would place the licensee or registrant in a position to render
adequate care. Any notice to a licensee
or registrant of reduction in client base or ban on new admissions shall
include the terms of the order, the reasons therefor and the date set for
compliance.
(b) The secretary shall
deny, suspend or revoke a license issued pursuant to this article if the
provisions of this article or of the rules promulgated pursuant to this article
are violated. The secretary may revoke a
program’s license or registration and prohibit all licensed health care
professionals associated with that substance abuse counseling program from
practicing at the program location based upon an annual, periodic, complaint,
verification or other inspection and evaluation.
(c) Before any such
license is denied, suspended or revoked, however, written notice shall be given
to the licensee or owner, stating the grounds for such denial, suspension or
revocation.
(d) An applicant or
licensee has ten working days after receipt of the secretary’s order denying,
suspending or revoking a license to request a formal hearing contesting such
denial, suspension or revocation of a license or registration under this
article. If a formal hearing is requested,
the applicant or licensee and the secretary shall proceed in accordance with
the provisions of article five, chapter twenty-nine-a of this code.
(e) If a license is
denied or revoked as herein provided, a new application for license or
registration 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.
(f) Any applicant or
licensee who is adversely affected by the decision of the secretary as a result
of the hearing provided in this section may, within thirty 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.
(g) The court may
affirm, modify or reverse the decision of the secretary and either the
applicant, licensee or registrant, or the secretary may appeal from the court’s
decision to the Supreme Court of Appeals.
(h) If the license of a
substance abuse counseling program is denied, suspended or revoked, the owner
of the program and the program sponsor shall cease to operate the facility,
office or program as a substance abuse counseling program as of the effective
date of the denial, suspension or revocation.
Upon receipt of written notice of the order of denial, suspension or
revocation, the owner or lessor of the substance abuse counseling program
property is responsible for removing all signs and symbols identifying the
premises as a substance abuse counseling program within thirty days. Any administrative appeal of such denial,
suspension or revocation shall not stay the denial, suspension or revocation.
(i) If the license of a
substance abuse counseling program is suspended or revoked, any person named in
the licensing or registration documents of the program, including persons
owning or operating the substance abuse counseling program, may not, as an
individual or as part of a group, apply to operate another substance abuse
counseling program for up to five years after the date of suspension or
revocation. The secretary may grant a
variance pursuant to section five of this article to the prohibition of this
subsection.
(j) The period of
suspension for the license of a substance abuse counseling program shall be
prescribed by the secretary, but may not exceed one year.
§16-5Z-8.
Violations; penalties; injunction.
(a) Any person,
partnership, association or corporation which establishes, conducts, manages or
operates a substance abuse counseling program without first obtaining a license
or registration as herein provided, or who violates any provisions of this
article or any rule lawfully promulgated pursuant to this article, shall be
assessed a civil penalty by the secretary in accordance with this subsection.
Each day of continuing violation after conviction shall be considered a
separate violation:
(1) If
a substance abuse counseling program or any owner, governing body or program
sponsor is found to be in violation of any provision of this article, unless
otherwise noted herein, the secretary may limit, suspend or revoke the
program’s license or registration;
(2) If
the program’s owner, governing body or program sponsor knowingly and
intentionally misrepresents actions taken to correct a violation, the secretary
may impose a civil money penalty not to exceed $10,000 and, in the case of any
owner-operator substance abuse counseling program, limit or revoke a substance
abuse counseling program’s license or registration;
(3) If
any owner or governing body of a substance abuse counseling program
concurrently operates an unlicensed or unregistered substance abuse counseling
program, the secretary may impose a civil money penalty upon the owner or
medical director, or both, not to exceed $5,000 per day; or
(4) If
the owner, governing body or program sponsor of a substance abuse counseling
program that requires a license or registration under this article fails to
apply for a new license or registration for the program upon a change of
ownership and operates the program under new ownership, the secretary may impose
a civil money penalty upon the owner, not to exceed $5,000.
(b)
Notwithstanding the existence or pursuit of any other remedy, the secretary
may, in the manner provided by law, maintain an action in the name of the state
for an injunction against any person, partnership, association or corporation
to restrain or prevent the establishment, conduct, management or operation of
any substance abuse counseling program or violation of any provision of this
article or any rule lawfully promulgated thereunder without first obtaining a
license or registration in the manner herein provided.
(c) In
determining whether a penalty is to be imposed and in fixing the amount of the
penalty, the secretary shall consider the following factors:
(1) The
gravity of the violation, including the probability that death or serious
physical or emotional harm to a client has resulted, or could have resulted,
from the substance abuse counseling program’s actions and actions of its staff,
the severity of the action or potential harm, and the extent to which the
provisions of the applicable laws or rules were violated;
(2)
What actions, if any, the owner, governing body or program sponsor took to
correct the violations;
(3)
Whether there were any previous violations at the substance abuse counseling
program; and
(4) The
financial benefits that the substance abuse counseling program derived from
committing or continuing to commit the violation and the corresponding
financial injury to or impact upon the client or clients.
(d) Upon finding that a licensed health care
professional has violated the provisions of this article or rules adopted
pursuant to this article, the secretary shall provide notice of the violation
to the applicable licensing board.
§16-5Z-9. Rules;
minimum standards for substance abuse counseling programs.
The secretary shall
propose rules for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code for the licensure of
substance abuse counseling programs to ensure adequate care, treatment, health,
safety, welfare and comfort of clients at these facilities. These rules shall include, at a minimum:
(1) The process to be
followed by applicants seeking a license;
(2) The qualifications
and supervision of licensed and nonlicensed personnel at substance abuse
counseling programs and training requirements for all facility health care
practitioners who are not regulated by another board;
(3) The provision and
coordination of client care, including the development of a written plan of
care and client contract;
(4) Minimum standards
for the management, operation, staffing and equipping of substance abuse
counseling programs;
(5) The clinical,
medical, client and business records to kept by the programs;
(6) The procedures for
inspections and for review of utilization and quality of client care;
(7) The standards and
procedures for the general operation of a substance abuse counseling program,
including facility operations, counseling program components, physical
operations, health and safety requirements and quality assurance;
(8) Any other criteria
that identify a facility as a substance abuse counseling program;
(9) The standards and
procedures to be followed by an owner in providing supervision, direction and
control of individuals employed by or associated with a substance abuse
counseling program;
(10) Data collection and
reporting requirements; and
(11) Such other
standards or requirements as the secretary determines are appropriate.
NOTE: The purpose of this bill is
to establish an application, licensing and regulatory system for the operation
of out-patient substance abuse counseling programs.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.