Bill Text: WV HB2778 | 2018 | Regular Session | Introduced
Bill Title: Relating to licensure of behavioral health centers and behavioral health consumer rights
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-01-10 - To House Health and Human Resources [HB2778 Detail]
Download: West_Virginia-2018-HB2778-Introduced.html
WEST virginia Legislature
2017 regular session
By
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to the Committee on Health and Human Resources then the Judiciary.
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §64-5-2, relating to reauthorizing, with amendment, as one rule, the legislative rules contained in title sixty-four, series eleven and series seventy-four of the Code of State Rules relating to licensure of behavioral health centers (64 CSR 11) and behavioral health consumer rights (64 CSR 74).
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §64-5-2, to read as follows:
ARTICLE
5. AUTHORIZATION FOR DEPARTMENT OF HEALTH AND HUMAN RESOURCES TO PROMULGATE
LEGISLATIVE RULES.
§64-5-2. Department Of Health And Human Resources
rules reauthorization.
The legislative rules contained in title sixty-four,
series eleven and series seventy-four of the code of state rules relating to
licensure of behavioral health centers (64 CSR 11) and behavioral health
consumer rights, (64 CSR 74) and both filed in the State Register on April 13,
2000, are reauthorized as one rule to read as follows:
TITLE 64
LEGISLATIVE RULE
DEPARTMENT OF HEALTH AND HUMAN RESOURCES
SERIES 11
MINIMUM LICENSING REQUIREMENTS FOR
PROVIDERS OF BEHAVIORAL HEALTH SERVICES AND SUPPORTS IN WEST VIRGINIA
§64-11-1.
General.
1.1 Scope.
-- This rule establishes
standards and procedures for the licensure of providers of behavioral health
services and supports under the provisions of W.Va. Code §27-1A-7 and related
federal and state codes. The W.Va. Code is available in public libraries and on
the Legislature’s web page http://www.legis.state.wv.us/.
1.2. Authority.
-- W. Va. Code §§27-1A-7,
27-1A-6(6), 27-1A-4(g), 27-17 (et. seq.) and 27-9-1.
1.3 Filing
Date:
1.4. Effective Date:
1.5. Repeal and Replacement of Former Rule: This
legislative rule repeals and replaces “Licensure of Behavioral Health Centers”,
64 CSR 11, effective July 1, 2000, and “Behavioral Health Consumer Rights”, 64
CSR 74.
1.6. Purpose:
-- These standards are the basis
for the licensing and approval of behavioral health services and supports in
West Virginia. Licenses are issued if the standards and applicable rules and
regulations are met. The purpose is to protect the health, safety, and
well-being of consumers receiving care from providers of behavioral health
services and supports and to regulate the provision of such services through
the formulation, application and enforcement of licensing requirements.
§64-11-2. Application and enforcement.
2.1. These apply to all providers of behavioral health
services and supports, both public and private. Each provider included in this
rule shall comply with these requirements.
2.2. This rule contains the requirements to obtain a
license to provide behavioral health services and supports for consumers in
West Virginia.
2.3. This rule applies equally to profit, nonprofit,
publicly funded and privately funded facilities.
2.4.
Enforcement: -- This rule is enforced by the Secretary of the
Department of Health and Human Resources.
2.5. Exemptions:
2.5.a. The
following programs or services are exempt from the requirements of this rule:
2.5.a.1 A
program exempted by state or federal statute;
2.5.a.2 Adult
emergency shelters and homeless outreach programs serving adults and
accompanying minors
2.5.a.3
Fellowship homes and halfway houses for support of individuals with
addictions;
2.5.a.4
Hospitals operating within the scope of their license under Chapter 16
of the West Virginia Code;
2.5.a.5
Individuals or groups of behavioral health or health practitioners
functioning within the scope of their license under Chapter 30 of West Virginia
Code;
2.5.a.6. Specialized family care providers providing
only services to individuals in specialized family care settings;
2.5.a.7. Legally
unlicensed health care homes as defined in 64 CSR 50;
2.5.a.8. Case
management services as defined in this rule.
2.5.b. The secretary shall deem the license of all
facilities operating as intermediate care facilities for the intellectually
disabled (ICF/ID) determined to be in compliance with federal certification
standards and of
residential children’s programs functioning within the scope of their license
as described in 78 CSR 3.
§64-11-3. Definitions.
3.1 Abuse: Any act on the part of a provider
which directly results in death, significant physical or emotional harm,
verbal, sexual and/or financial maltreatment or exploitation; an act committed
by the provider which presents imminent serious harm.
3.2. Addiction: A disease characterized by the
individual’s pursuing reward and/or relief by substance use and/or other
behaviors. Addiction is characterized by impairment in behavioral control,
craving, inability to consistently abstain, and diminished recognition of
significant problems with one’s behaviors and interpersonal relationships;
likely to involve cycles of relapse and remission.
3.3. Adult basic skills coaching: Unstructured
coaching or prompting of individuals in their home or group home environment in
areas including, but not limited to, money management, safety, housekeeping,
personal care, nutrition, cooking, and medication education. This is considered
to be a supportive service.
3.4. Alteration: A change to a provider location
that affects the usability of the building or facility or any part thereof.
Alterations include, but are not limited to, remodeling, renovation,
rehabilitation, reconstruction, historic restoration, changes or rearrangement
in structural parts or elements, and changes or rearrangement in the plan
configuration of walls and full-height partitions. Normal maintenance,
reroofing, painting or wallpapering, asbestos removal, or changes to mechanical
and electrical systems are not alterations unless they affect the usability of
the building or facility.
3.5. Behavioral Health Service: A direct service
provided to an individual with mental health, addictive, behavioral and/or
adaptive challenges that is intended to improve or maintain functioning in the
community. The service is designed to provide treatment, habilitation, and/or
rehabilitation.
3.6. Behavioral Intervention: A behavior support
approved by the service planning team. A behavioral intervention must be based
on a functional assessment of the targeted behavior and must be specific and
measureable.
3.7. Case
management: A nonclinical service that helps the consumer arrange for
appropriate services and supports. This service may involve, but is not limited
to, assistance with completion of applications and forms, transportation,
assistance in making appointments for medical or other care and telephone calls
but is not a direct clinical service provided to a consumer. Case management is
not considered to be a service unique to a health care setting and is therefore
not a behavioral health or supportive service.
3.8. Chemical restraint: An anti-psychotic
medication used to control behavior or to restrict the consumer's freedom of
movement when the medication is not a standard treatment for the consumer's
medical or psychological condition. Doses of any medication prescribed at
levels beyond that recommended for normal clinical use shall also be evaluated
for inclusion as a chemical restraint.
3.9. Chief
executive officer: The individual designated by the governing body to be
responsible for the provider’s daily operations. The chief executive officer
may also be referred to as the provider’s president, executive director, or
chief administrative officer.
3.10. Clinic
behavioral health service: An episodic outpatient treatment service usually but
not invariably provided in a clinic setting by mental health professionals who
are licensed or under supervision to obtain licensure. Clinic behavioral health
services may also be provided in alternative locations by a licensed provider
through contract or memorandum of understanding or in a consumer’s home to
children, parents, adults and families. A consumer may receive more than one
clinic behavioral health service.
3.11 Multiagency
Comprehensive plans of services: A written description of the behavioral health
services and supports provided to the consumer with measureable goals
accompanied by a description of the supports the consumer is receiving. These
services are usually provided by several agencies acting in coordination. The
comprehensive plan is utilized for consumers receiving both behavioral health
services and supports.
3.12. Comprehensive
mental health center (CMHC): A provider designated by the secretary to
provide mandatory specific mental health services to an identified target
population in a designated region of the State of West Virginia.
3.13. Consumer: An individual who receives services
and/or supports from a provider licensed under this rule.
3.14. Critical incident: An unusual and unexpected
event that does not meet the definition of abuse or neglect however there is
reasonable cause to believe that a consumer is of imminent risk of serious
harm.
3.15. Critical treatment juncture: The occurrence
of an unusual or
significant event which may have an impact on the process of treatment. A
critical treatment juncture will result in a documented meeting between the
provider and the consumer and/or DLR and may cause a revision of the plan of
services.
3.16. Crisis services: Twenty-four hour
availability of certification screenings for commitment; telephone answering
for behavioral health crises, with clinician follow up as necessary within thirty
minutes; and personalized screening as necessary and appropriate by trained
staff on 24-hour basis.
3.17. Designated legal representative (DLR): Parent
of a minor child, conservator, legal guardian (full or limited), health care
surrogate, medical power of attorney, power of attorney, representative payee,
or other individual authorized to make certain decisions on behalf of a
consumer and operating within the scope of his/her authority.
3.18. Disaster relief: Provision of community-based
behavioral health services to individuals who are the victims of a natural or
other disaster. Disaster relief may include emergency interventions with first
responders experiencing distress due to their participation in recovery
activities subsequent to a disaster.
3.19. Emergency: A situation or set of
circumstances which presents a substantial and immediate risk of death or
serious injury to a consumer.
3.20. Expanded plan of service: A description of
the treatment, habilitation or rehabilitation goal(s) of the behavioral health
services provided to the consumer stated in measureable terms, accompanied by a
brief description of any supportive services to be provided. The expanded plan
of service is developed at the conclusion of the assessment process and may be
preceded by an initial plan of service.
3.21. Governing body: A clearly identified group of
people (or person or partnership when applicable) which exercises authority
over and has responsibility for the provider’s operation, policies and
practices. The provider will designate the governing body at the time of
licensure. If an entity is a corporation with an out of state ownership or
management structure, the provider will identify the governing body in
conjunction with the secretary.
3.22. Habilitation: A direct service promoting the
acquisition of skills or emotional or behavioral self-management abilities that
the person did not develop at an appropriate developmental phase.
3.23. Inappropriate behavior: A behavior which is
hazardous to a consumer or individuals in his or
her environment; a
maladaptive behavior which interferes in the ability of the consumer to lead an
integrated life in the community to an optimally independent degree.
3.24. Incapacitated adult: Any person who by reason
of physical, mental, or other infirmity is unable to independently carry on the
daily activities of life necessary to sustaining life and reasonable health;
3.25. Initial plan of service: The plan developed
at the conclusion of the admissions process that describes the services and/or
supports the consumer is to receive until the assessment process is complete
and the expanded plan of service is developed.
3.26.
Intensive community-based stabilization and maintenance programs: Multidisciplinary
programs for in-home habilitation/rehabilitation, stabilization, and
maintenance of individuals with behavioral health challenges.
3.27. Linkage and aftercare: Establishment of a
relationship between a CMHC and a committed individual while the consumer is
still in the hospital; subsequent case management and provision of services
designed to prevent rehospitalization and promote stabilization and maintenance
of function.
3.28. Locked behavioral health program: a program
authorized by the secretary to be locked when consumers are present in order to
protect consumers or other members of the general public.
3.29. Neglect: A lack of appropriate and reasonable
action on the part of a provider that results in death, serious physical or
emotional harm, sexual abuse or exploitation; Noncritical incident: Any unusual
event occurring to a consumer that needs to be recorded and investigated for
risk management or quality improvement purposes but does not meet the
definition of abuse, neglect, or critical incident.
3.30. Nonmethadone medication-assisted programs for
addictions and cooccurring disorders: A
program that provides medications other than methadone to assist consumers to
deal with withdrawal symptoms and on-going cravings for substances of misuse,
typically opioids; not to include programs utilizing medications for the
purpose of short term detoxification.
3.31. Personal attendant: A supportive service that
provides assistance in activities of daily living for the consumer that may
include prompting. The service may assist the individual to maintain his or her
skills and abilities but does not carry the expectation of habilitation or
rehabilitation as the result of the receipt of the service.
3.32. Physician extender: A medical professional
including an advanced practice registered nurse or a physician’s assistant functioning
within their legal scope of practice.
3.33. Plan of service: A written description of the
behavioral health services and/or supports that the consumer is to receive.
3.34. Programs requiring twenty-four hour medical
monitoring: Any program providing around the clock supervision in a
community-based location/site for the purpose of physical and/or psychiatric
medical stabilization of mental, behavioral or addictions disorders.
3.35. Provider: An entity (including staff and
individuals employed or contracted to provide consumer services on behalf of
the entity) that provides behavioral health and/or supportive services under
this regulation.
3.36. Psychosocial rehabilitation: A habilitation
and/or rehabilitation service that seeks to effect changes in a person’s
environment and the ability of the person to deal with his/her environment so
as to facilitate improvement in symptoms or personal distress. Psychosocial rehabilitation focuses on
helping individuals develop skills and access resources needed to increase
their capacity to be successful and satisfied in the community environment.
3.37. Rehabilitation: A direct service that
promotes reacquisition of skills or emotional or behavioral self-management
abilities that the person has lost due to mental illness, traumatic brain
injury, institutionalization or long-term addiction.
3.38. Residential treatment program for addictions
and/or cooccurring disorders: A program conducted twenty-four hours per day to
stabilize, educate and treat individuals with addictions and cooccurring
disorders. The program is usually time limited or the length of the program is
dependent upon consumer progress toward the goal of stability and/or sobriety.
The consumer does not consider the program to be a place of temporary or
permanent residence.
3.39. Respite: A supportive service designed to
provide temporary substitute care for an individual whose primary care is
normally provided by the family of a consumer. The services are to be used on a
short-term basis due to the absence of or need for relief of the primary caregiver. Respite consists of temporary care services
and supervision for an individual who cannot provide for all of his/her own
needs and may be provided in the consumer’s home location, in the community, or
in a location owned, rented or leased by the respite provider.
3.40. Restraint: Any manual method, physical or
mechanical device, material, or equipment that immobilizes or reduces the
ability of a consumer to move his or her arms, legs, body, or head freely. A
restraint does not include devices such as orthopedically prescribed devices,
surgical dressings or bandages, protective helmets, lap belts on wheel chairs
utilized for support, or other methods that involve the physical holding of a
consumer for the purpose of conducting routine physical examinations or tests,
or to protect the consumer from falling out of bed, or to permit the consumer
to participate in activities without the risk of physical harm. Redirection
through physical prompting and/or hand over hand instruction is not to be
considered a restraint.
3.41. Screening: The act of evaluating an
individual to determine if he or she meets the definitional requirements of the
target population and is in need of a behavioral health service.
3.42. Seclusion: The involuntary confinement of a
consumer alone in a room or area from which the consumer is physically
prevented from leaving.
3.43. Secretary: The Secretary of the Department of Health and Human
Resources or his or her designee.
3.44. Service coordination: A skilled service in
which the professionally trained worker assesses the needs of the client and
the client’s family, when appropriate, and arranges, coordinates, monitors,
evaluates, and advocates for a package of multiple services to meet the
specific client’s complex healthcare needs. This service typically involves the
preparation of a detailed plan of services with specified objectives and time
frames and when offered exclusively to a population of individuals with
behavioral healthcare needs, is considered to be a behavioral health service.
3.45. Special program: A program with additional
standards of operation beyond the general standards described in this rule.
3.46. Student: A student of a high school,
community or technical college, college or university, health services intern,
or medical resident.
3.47. Supportive service: This service is designed
to assist the individual to live in the community in a manner that is socially
inclusive, optimally independent and self-directed while preserving his/her
health, safety and quality of life. These services are not designed to change
behavior or emotional functioning but serve to support the individual in his or
her community-based settings. Supportive services may include unstructured
coaching or prompting of age appropriate living skills.
3.48. Treatment: A direct medical, behavioral, or
psychotherapeutic service designed to ameliorate the effects of a mental
illness, addiction or behavioral disorder and/or sustain the positive effects
of interventions.
3.49. Twenty-four hour program accepting mothers
with children: Any twenty-four hour program conducted for the purpose of
behavioral health treatment or rehabilitation of mothers accompanied by
children.
3.50. Variance: A declaration that a rule may be
accomplished in a manner different from the manner set forth in the rule.
3.51. Volunteer: An individual who offers to
provide assistance and support for consumers without pay. Natural support
systems such as friends, neighbors and family members are not to be considered
volunteers.
3.52. Waiver: A declaration that a certain rule is
inapplicable in a particular circumstance.
§64-11-4. State administrative processes.
4-1. General licensure provisions.
4.1.a. Before establishing, operating, maintaining
or advertising as a provider of behavioral health services and supports as
defined in this rule within the State of West Virginia, a provider shall first
obtain from the secretary a license authorizing the operation.
4.1.b. A license is valid for the provider named in
the application and is not transferable.
4.1.c. The provider shall surrender an invalid
license to the secretary on written demand.
4.1.d. Applications for licenses or approvals are
made on forms prescribed by the secretary.
4.1.e. The provider shall notify the secretary prior
to the sale or merger of the entity if the ownership of a provider changes. The
secretary shall require that a new license be obtained.
4.1.f. A provider shall demonstrate a need for the
proposed service by obtaining a current certificate of need or a determination
of nonreviewability from the Health Care Authority, unless otherwise exempted
from review.
4.1.g. The secretary shall make a decision on each
application within sixty days of its receipt and shall provide to unsuccessful
applicants written reasons for the decision.
4.1.h. The secretary shall perform an on-site
inspection prior to issuing initial, renewal or provisional licenses. Such
inspection shall be performed within sixty days of receipt of a complete
application.
4.2. License
application.
4.2.a. The provider shall submit an application for
license when establishing a new location for service provision, initiating or
relocating a special program as defined by this rule, or renewing an expiring
license. Providers shall submit an
application at least sixty days in advance of the need for licensure.
4.2.b. Additionally, the provider shall notify the
secretary sixty days in advance of the following:
4.2.b.1. A change in location of administrative
offices;
4.2.b.2. A change in ownership;
4.2.b.3. A significant change in the population served
or intensity of service provided; and/or
4.2.b.4. Termination of operation.
4.2.c. The secretary may require submission of a new
or amended application for licensure at his/her discretion.
4.2.d. The provider shall submit all required
information or the application is invalid.
4.2.e. The application shall be accompanied by
supporting documentation.
4.2.f. A member of the governing body and/or the
chief executive officer shall sign the application.
4.2.g. Prior to the issuance of a license, the chief
executive officer and/or governing body shall ensure adequate resources to
support the provider’s services. If a
new provider, the governing body and/or chief executive officer shall
demonstrate sufficient operating funds for at least six months. Sufficient operating funds shall consist of
cash or other liquid capital or an irrevocable letter of credit as required by
a policy to be made available by the secretary.
4.3. Types of licenses.
4.3.a. Following application and review, the
secretary shall issue a license in one of two categories.
4.3.a.1. Initial License: The secretary shall issue an
initial license to providers establishing a new service found to be in
compliance with regard to policy, procedure, provider, record keeping and
service environment rules. It expires
not more than six months from date of issuance and shall not be reissued. After
a complete application for a regular license with required fee has been
received, the existing initial license shall not expire until the regular
license has been issued or denied.
4.3.a.2. Regular license: The secretary shall issue a
regular license to providers complying with this rule. It expires not more than three years from the
date of issuance. The secretary may issue a regular license of shorter duration
than three years to a provider with a level of service not in substantial
compliance with this rule.
4.3.a.3. A regular license may be amended at any time
during the cycle to reflect changes in the provider’s service classification,
programs, structure or population.
4.3.b. A valid initial or regular license shall be
considered in effect until the secretary temporarily extends or denies in
writing renewal of the license or until the secretary initiates formal action
to terminate or otherwise modify the license and all due process actions have
been resolved.
4.3.c. Provisional licensure status: The secretary
may place a program, classification of service or agency on provisional status
if the provider is not in substantial compliance with this rule, but does not
pose a significant risk to the rights or health and safety of a consumer.
4.3.d. Such status shall expire not more than six
months from date of issuance, and shall not be consecutively reissued unless
the provisional recommendation is that of the State Fire Marshal.
4.3.e. A provisional status shall apply only to the
particular program or service being reviewed unless a determination is made
based on credible information that the same violations occur at other sites or
within other programs of the same service classification.
4.3.f. If a program or service is issued provisional
licensure status, notification of that provisional status shall be publicly
posted in the location of the program or service receiving provisional status
for the duration of the provisional status.
4.3.g. The secretary shall reevaluate a program or
service operating under a provisional status before or near the end of the six
month provisional period.
4.3.h. Once the program or service is deemed to be
in substantial compliance with this rule, the provisional status of the program
or service shall be lifted.
4.3.i. If the program or service does not regain
substantial compliance with this rule within six months, the license for the
program or service will be terminated provided that if the review has not yet
been completed by the secretary within the designated time frame, the program
or service may continue to operate until such time as the review has been
completed and due process alternatives, if any, pursued to completion.
4.4. Deemed status. The secretary shall accept an accreditation
review from an accreditation commission for a provider instead of an inspection
by the department for renewal of a license under 64 CSR 11, but only if:
4.4.a. The
provider is accredited by the Commission on Accreditation of Rehabilitation
Facilities (CARF), the Joint Commission, The Council on Accreditation (COA)
or another national accreditation organization recognized by the department;
4.4.b. The accreditation
commission maintains and updates an inspection or review program that, for each
treatment facility, meets the department’s applicable minimum standards;
4.4.c. The
accreditation commission conducts a regular on-site inspection or review of
provider according to the accreditation commission’s guidelines; and
4.4.d. The
provider submits to the department a copy of its most recent accreditation
review from the accreditation commission in addition to the application, fee,
and any report or other document required for renewal of a license.
§64-11-5. Construction and alteration.
5.1. Before new construction begins, a provider
shall submit to the secretary for approval a copy of the site drawings and
specifications for the architectural structure and mechanical work.
5.2. Before an alteration begins, the provider
shall consult with the secretary regarding construction objectives. If the
alteration does not affect consumer care and/or does not have an effect upon
areas of the building(s) in which consumer care is provided, the alteration
shall not be reviewable.
5.3. The secretary may require site drawings or
other materials depending on the extent and type of alteration, provided that
normal maintenance,
reroofing, painting or wallpapering, asbestos removal, or changes to mechanical
and electrical systems are not alterations unless they affect the usability of
the building or facility to provide consumer care. Plans and blueprints may not
be required in alterations with a construction budget of less than $100,000,
adjusted upward annually according to the formula of the West Virginia Health
Care Authority.
5.4. All altered and new structures owned or
leased by the provider shall conform to the Americans with Disabilities Act
(ADA) as amended.
5.5. The secretary shall provide consultation and
technical assistance in obtaining compliance with this rule.
§64-11-6. Inspections and records.
6.1 The provider shall comply with any reasonable
requests from the secretary to have access to the service, staff, consumers and
relevant records of the agency. Consumers and/or their DLR may decline to be
interviewed by the secretary at any time.
6.2 The provider may maintain files in an
electronic medium.
6.3 The secretary shall review files in the
location in which they are maintained, unless the provider agrees to a modified
location.
6.4 The secretary may conduct announced and
unannounced inspections of all aspects of the provider’s clinical operation and
premises unless services or supports are provided in a location owned, rented
or leased by a consumer. A consumer may deny access to his or her place of
residence unless there is evidence of a clear and immediate danger to the
health of a consumer.
6.5 A provider shall permit review of a
provider’s medical records, employment records, and other relevant records as
requested by the secretary. The
secretary shall ensure the confidentiality of such information, including
consumer or employee protected health information.
6.6 The secretary shall inspect a licensed
provider thirty to ninety days prior to the expiration of its license.
6.7 An initial or regular license shall be
considered valid until the secretary issues or denies in writing renewal of the
license or until the secretary initiates formal action to terminate or
otherwise modify the license.
6.8 The secretary shall issue a report within ten
working days of completion of an inspection. The report may contain two types
of findings, as appropriate:
6.8.a. Citations: The secretary shall describe the provider’s
noncompliance with the standard in detail and the provider shall be expected to
supply the secretary with a plan of correction as described in the section
“Corrective Action Plans”.
6.8.b. Recommendations: If the provider’s lack of
compliance is with internal policy rather than with the rule itself, the
secretary may elect to make note of this noncompliance and any minor
infractions of the rule through a discussion with the provider and an informal
note to the file.
§64-11-7. Complaint investigation.
7.1. Any person may file a complaint with the
secretary alleging violation of applicable laws or rules by a provider. Incidents reported to the secretary may be
considered complaints at the discretion of the secretary, but are not required
to be considered complaints. A complaint shall state the nature of the
complaint and the provider by name;
7.2. The secretary shall conduct unannounced
inspections of providers involved in a complaint and any other investigations
necessary to determine the validity of a complaint.
7.3. At the time of the investigation, the
investigator shall notify the administrator and the person in charge of the
location involved in the complaint as to the general reason for the complaint.
7.4. The secretary shall provide to the provider a
written report of the results of the investigation along with specific
findings, detailed analysis of licensure regulations implicated, a report of
any violations, and a notice describing the provider’s due process rights. The written report shall be issued by the
secretary within ten working days of completing the investigation. The complaint investigation may result in
a citation and/or recommendation or neither outcome.
7.5. The secretary shall inform the complainant
that an investigation was conducted and whether it was substantiated. The secretary shall keep the names of a
complainant and of any consumer or DLR involved in the complaint or
investigation and any information that could reasonably lead to the
identification of the complainant confidential, but shall disclose the general
nature of the complaint to the
provider upon determining that a violation has occurred.
7.6. If a complaint becomes the subject of a
judicial proceeding, nothing in this rule prohibits the disclosure of
information contained within the complaint that would otherwise be disclosed in
judicial proceedings.
7.7. The provider shall not discharge or
discriminate in any way against any individual or group of individuals who has
been a complainant, on whose behalf a complaint has been submitted, or who has
participated in an investigation process by reason of that complaint.
§64-11-8. Reports of investigations and inspections.
8.1. All investigations and inspections shall
result in a written report by the secretary, even if no violation has been
identified.
8.2. The report shall specify the areas of
noncompliance with the rule it violates, if any, and describe the precise data,
observation or interview to support the deficiency.
8.3. Information in reports or records is
available to the public except:
8.3.a. As specified in this section regarding
complaint investigations;
8.3.b. Information of a protected nature from a
consumer or staff’s file; and
8.3.c. Information required to be kept confidential
by state or federal law.
8.4. The secretary shall not make a report or
complaint public until the provider has the opportunity to review the report
and obtain an approved corrective
action plan, if necessary. No report
may be released until due process rights of appeal have been pursued to
conclusion.
8.5. The provider shall make reasonable efforts to secure the necessary
resources for the delivery of services.
However, the secretary shall not cite the provider nor require services
that are not reimbursable.
§64-11-9. Corrective action plans.
9.1. Within ten working days after receipt of the
licensing report, the provider shall submit to the secretary for approval a
written plan to correct all areas of noncompliances that are in violation of
this rule and described by citation, unless a variance or waiver is requested
by the provider and granted by the secretary or the provider is appealing a
citation through identified methods of due process. The plan shall specify:
9.1.a. Any action taken or procedures proposed to
correct the areas of noncompliance and prevent their reoccurrence;
9.1.b. The date or projected date of completion of
each action taken or to be taken; and
9.1.c. The signature of the chief executive officer
or his or her designee.
9.2. The secretary shall approve, modify or reject
the proposed corrective
action plan in writing within 10
working days of receipt. The provider
shall make modifications to the plan as requested by the secretary.
9.3. The secretary shall state the reasons for rejection
or modification of any corrective
action plan.
9.4. The provider shall submit a revised corrective action plan within ten working days
whenever the secretary rejects a corrective action
plan. If the secretary
cannot approve the second submitted plan of correction, he or she may supply a
directed plan of correction.
9.5. The secretary may release a report to the
public within ten days of an approved plan of correction
or a directed plan of correction unless the
provider has elected to pursue due process appeals and has notified the
secretary of intent to do so.
9.6. The provider shall immediately correct an
area of noncompliance that clearly results in an immediate risk to the health
or safety of a consumer or other persons unless the area of noncompliance
relates to an environmental or other condition over which the provider has no
control, such as a home owned or leased by the consumer or DLR.
§64-11-10. Waivers and variances.
10.1. A provider shall comply with all relevant
requirements unless a waiver or variance for a specific requirement has been
granted through a prior written agreement.
This agreement shall specify the specific requirement to be waived, the
duration of the waiver, and the terms under which the waiver is granted.
10.2. Waiver of specific requirements shall be
granted only when the provider has documented and demonstrated that it complies
with the intent of the particular requirement in a manner not permitted by the
requirement.
10.3. The waiver shall contain provisions for a
review of the waiver if necessary.
10.4. When a provider fails to comply with the
waiver agreement, the agreement is subject to immediate cancellation, provided
that such cancellation shall allow sufficient time to make alternative
arrangements for consumers. The secretary shall immediately inform the provider
in writing of cancellation of a waiver.
§64-11-11. Penalties.
11.1. The secretary may deny the provider’s
application for licensure or licensure renewal; modify or revoke a license;
and/or prohibit admissions or reduce consumer census for one or more of the
following reasons:
11.1.a. The provider fails to submit an adequate plan of correction without formally
notifying the secretary that the agency intends to exercise due process rights
of appeal;
11.1.b. The secretary makes a determination that
fraud or other illegal action has been committed;
11.1.c. The provider violates federal, state, or
local law relating to building, health, fire protection, safety, sanitation or
zoning, or payment of worker’s compensation or employment security taxes, and
fails to remedy such violation given sufficient notice;
11.1.d. The provider conducts practices that clearly
and seriously jeopardize the health or safety of consumers;
11.1.e. The provider fails or refuses to make medical
or employment records reasonably related to compliance with this rule available
within a reasonable period of time as requested by the secretary; or
11.1.f. The provider refuses to provide access to its
service locations within a reasonable period of time as requested by the
secretary.
11.2. Where the operation of a behavioral health or
supportive service clearly constitutes an immediate danger of serious harm to
consumers served by the program, the secretary may issue an order of closure
terminating operation of the specific segment of the provider’s program array
clearly giving rise to the immediate danger of serious harm. A provider
appealing such a closure order may continue to operate the specified service(s)
pending exhaustion of administrative and/or judicial appeals.
11.3. Where a violation of this rule shall clearly
result in an immediate danger of serious harm to consumers receiving services,
the secretary may seek injunctive relief against any person, corporation,
provider or government official through proceedings instituted by the Attorney
General, or the appropriate county prosecuting attorney, in the circuit court
of Kanawha County, or in the circuit court of any county where the consumer is
residing or shall be found.
11.4. The secretary will assist the provider,
consumer and DLR to develop alternative service arrangements should closure of
a program or service result.
§64-11-12. Administrative and judicial review.
12.1. Any provider aggrieved by a decision of the
secretary made pursuant to this rule shall contest the decision upon making a
request for an informal
dispute resolution within ten working
days of receipt of notice of the decision.
12.2. Administrative and judicial review may be
made in accordance with the provisions of article five, chapter twenty-nine-a
of the State Code of
West Virginia. Any decision issued by
the secretary shall be made effective from the date of issuance.
12.3. Immediate relief may be obtained by the
provider upon a showing of good cause made by a verified petition to the
circuit court of Kanawha County or the circuit court of any county where the
affected provider shall be located.
12.4. The pendency of administrative or judicial
review shall not prevent the secretary or a provider from obtaining injunctive
relief as provided for in this rule.
§64-11-13. Access and eligibility.
13.1. The provider shall define its service
population and the eligibility criteria for each of its services.
13.2. Provider policy shall state that the provider
does not discriminate by race, religion, color, age, national origin or
disability.
§64-11-14. Confidentiality and privacy protections.
14.1. The provider shall conform to all federal and
state requirements with regards to the confidentiality of consumers served.
14.2. The provider shall have clearly stated
procedures regarding the disclosure of information about consumers served that
are in compliance with state and federal code. The provider shall assure that a
release of information is completed in full, prior to signature, for it to be
valid. A copy of the signed form shall
be placed in the case record.
14.3. The provider shall prohibit use of
photographs, videotapes, audio-taped interviews, artwork or creative writing
for public relations or fund raising purposes without the informed consent of
the consumer and/or DLR.
§64-11-15. Access to case records and information
management.
15.1. Consumers and/or their DLR shall have access
to their case records to the extent permitted by state and federal law.
15.2. The provider may require that sensitive
psychological, psychiatric or other information be reviewed with the support of
clinical staffs. The provider shall document
the reason for the requirement.
15.3. The provider shall have policy and procedures
that protect electronically maintained data in compliance with federal
standards.
§64-11-16. Research protections.
16.1. The provider shall have written policies
regarding the participation of consumers in research projects if the provider
engages in research activities.
16.2. Provider policy shall clearly state whether
or not the provider conducts, participates in, or permits research involving
persons served.
16.3. If a provider does research, it shall have a
human subjects committee or an internal review board that reports to the chief
executive officer or a designated authority with policymaking functions; and
16.3.a. Reviews research proposals that involve
persons served;
16.3.b. Makes recommendations regarding the ethics of
proposed or existing research;
16.3.c. Makes recommendations as to whether or not to
approve research proposals; and
16.3.d. Establishes a minimum frequency for
monitoring of ongoing research activities.
16.4. Each research participant or when appropriate
his or her parent or DLR shall sign a consent form that includes:
16.4.a. A statement that he or she voluntarily agrees
to participate;
16.4.b. A statement that the provider will continue
to provide services whether or not he or she agrees to participate;
16.4.c. An explanation of the nature and purpose of
the research;
16.4.d. A clear description of possible risks or
discomfort;
16.4.e. A guarantee of confidentiality; and,
16.4.f. The signature of the consumer, parent or DLR.
16.5. The provider shall safeguard the identity and
privacy of persons served in all phases of research conducted by or with the
cooperation of the provider.
§64-11-17. Grievance procedures.
17.1. Written policy and procedures shall provide
consumers and their parent or DLR, if appropriate, with a formal mechanism for
expressing and resolving complaints and grievances. The policy shall contain
timelines for resolution not to exceed sixty days from the filing of the
grievance.
17.2. These procedures shall be available to
consumers and their parent or DLR via paper or electronic means (such as posted
on the provider’s website).
17.3. The procedures shall:
17.3.a. Be given to consumers, and their parent or
DLR if appropriate, upon request;
17.3.b. Include an internal appeal procedure and
options for external appeal as provided by the secretary, to include any
appropriate and relevant state and federal agencies;
17.3.c. Provide for a timely resolution of the matter
and require a written response to the aggrieved that includes documentation of
the response in the case record and administrative file; and
17.3.d. Indicate that grievances shall be filed
either orally or in writing and that all staff (with the exception of the
target of the grievance) of the provider are responsible for assisting any
person who wishes to file a grievance.
§64-11-18. Consumer rights and responsibilities.
18.1. The
provider shall inform all consumers and/or DLRs of their rights and
responsibilities as specified in Chapter 27 of the West Virginia Code.
18.2. Information on rights and responsibilities
shall be appropriate to each of the provider’s services.
18.3. Notification shall reflect the consequences
of noncompliance with programmatic rules, as well as limitation on individual
rights occasioned by involuntary placement or court orders.
18.4. Providers shall inform all consumers of their
rights and their responsibilities as consumers of services in a format that can
be utilized and understood by the person and, as appropriate, his or her
Designated Legal Representative (DLR).
18.5. All consumers and/or their DLRs, upon
request, shall receive information about their rights and responsibilities that
is:
18.5.a. Posted in a public area (as appropriate);
18.5.b. Provided in writing; and
18.5.c. Distributed during their initial contact with
the provider during admission.
18.6. Each consumer’s record shall contain
documentation that the individual received an explanation of his or her rights
and responsibilities as described in this rule, initialed by the consumer
and/or DLR.
§64-11-19. Continuous quality improvement.
19-1. Each provider shall have a Continuous Quality
Improvement process which shall be coordinated by a designated staff person.
§64-11-20. Safety review process.
20.1. Each provider shall implement a process to be
utilized by the provider to oversee maintenance, repair and safety of all
properties owned or leased by the provider. The entity responsible for safety
shall evaluate the physical condition of the provider properties, identify any
maintenance needs. Each provider location shall be reviewed at least annually.
§64-11-21. Case review process.
21.1. Each provider shall develop a process for
reviewing the quality and adequacy of documentation of services in the consumer
record. The provider shall apply a sampling method that does not regard funding
source, and shall record the results of each review.
§64-11-22. Governing body.
22.1. The provider shall have a clearly identified
group of people (or person or partnership when applicable) which exercises
authority over and has responsibility for its operation, policies and
practices.
22.2. The governing body shall be one of the
following:
22-2-a. A Board of Directors in the case of a nonprofit
or for-profit corporation;
22-2-b. A proprietor in case of a sole
proprietorship;
22-2-c. Partners, in case of a partnership; or,
22-2-d. Any other entity as agreed by the secretary
at time of licensure.
22.3. If the governing body is a board, all members
of the board shall be provided:
22.3.a. A formal orientation to the provider and
responsibilities of membership of the governing body, which shall be
documented;
22.3.b. Annual reports of the programmatic and fiscal
activities of the provider; and
22.3.c. Results of accreditation and/or licensure
surveys.
22.4. If the Governing Body is a Board, it shall:
22.4.a. Identify in writing the mission of the
provider and ensure the operation of programs and services to further the
mission;
22.4.b. Review and approve the provider’s annual
budget;
22.4.c. Designate a chief executive officer and/or
leadership staff and delegate authority to that entity to manage day-to-day
operation of the provider;
22.4.d. Develop a policy regarding retention of
minutes and records generated from all meetings, including members who were
present or absent; and
22.4.e. Meet at least four times annually.
§64-11-23. Chief executive officer.
23.1. The chief executive officer shall:
23.1.a.
Coordinate the development and implementation of policies governing the
provider’s program of services;
23.1.b. Coordinate the development and implementation
of programs and services which further the mission of the provider;
23.1.c.
Ensure that a written report is provided to the governing body at least
annually regarding the provider’s operations as they relate to the mission of
the entity; and
23.1.d. Ensure a written report on the provider’s
financial condition and the results of case review, safety and CQI processes is
submitted to the governing body at least annually.
§64-11-24. Administrative file for the provider.
24.1. A provider shall make available upon request
of the appropriate governmental reviewer. The following information and
documents:
24.1.a. The governing structure including the charter
and articles of incorporation as appropriate;
24.1.b. A mission statement;
24.1.c. The most recent audit or financial statement;
24.1.d. The provider’s current organizational chart;
24.1.e. The name and position of persons authorized
to sign agreements for the provider;
24.1.f. The governing body structure and its
composition with names and addresses and terms of membership;
24.1.g. Existing purchase of consumer service
agreements, if any;
24.1.h. Insurance coverage (all types) including
bonding documents if appropriate; and
24.1.i. A copy of any Memoranda of Understanding with
other service-related agencies or entities.
§64-11-25. Risk management.
25.1. The provider shall purchase or self-fund
appropriate types of insurance including as appropriate, but not limited to: General liability, fire and theft,
professional liability, officer’s or director’s liability, and automobile
liability for provider owned or leased vehicles.
25.2. The provider shall ensure that all staff who
handle or manage consumer funds, are bonded at the provider’s expense or that
the provider maintains appropriate insurance coverage to cover potential
losses, unless the aggregate amount of consumer funds is less than $2500.
25.3. Parents acting in their legal capacity as
conservators for their children or protected adults, even if employed by the
provider, are not included in the requirement for bonding.
25.4. The provider may elect to self-insure but
must guarantee replacement of losses of consumer funds.
25.5. All bonding policies shall be adequate to
replace the aggregate of consumer funds managed by the provider or if the
provider elects to self-insure, there must be evidence of sufficient financial
capacity to replace consumer funds.
§64-11-26. Transportation.
26.1. A provider that provides transportation in
vehicles owned or leased by the provider for use with consumers as part of a
service shall have procedures for ensuring:
26.1.a. The use of age-appropriate passenger
restraint systems;
26.1.b. Adequate passenger supervision relative to
the ages, sexes, behavioral challenges and disabilities of the consumers being
transported;
26.1.c. Proper and timely licensure and inspection of
the vehicles;
26.1.d. First aid kits in each provider vehicle;
26.1.e. Proper and timely maintenance of vehicles;
26.1.f. That the number of persons in any vehicle
used to transport consumers shall not exceed the number of available safety
restraint systems;
26.1.g. Sufficient liability insurance;
26.1.h. Secure anchoring for wheelchairs except in
automobiles; and
26.1.i. Annual validation of driver licenses of
individuals driving vehicles that transport consumers.
26.2. The provider shall maintain evidence,
annually, that staff transporting consumers in their own vehicles as part of
their duties are properly insured either personally or through the provider’s
insurance in case of automobile accident.
§64-11-27. Legal compliance.
27.1. The provider shall comply with all applicable
federal, state, and local laws, rules and regulations associated with all
aspects of service delivery and operations and shall possess all necessary
licenses.
27.2. Current licenses or certificates shall be
prominently displayed in an area visible to the public.
§64-11-28. Security of information and consumer records.
28.1. The provider shall have policies and
procedures regulating access to records of staff and consumers that are in
compliance with all federal and state requirements. Regulatory agencies shall be allowed access
to relevant service and employment information as necessary to fulfill their
statutory duties.
28.2. The provider shall ensure that service and
employment records, whether paper or electronic, are made available for
inspection within normal business hours except in unusual or emergency
circumstances.
28.3. The provider shall have procedures to protect
service and employment records, whether in electronic or paper form, from destruction
by fire, water, loss or other damage and from unauthorized access.
28.4. Written procedures shall govern the
retention, maintenance and destruction of consumer records.
28.5. At a minimum, the provider shall retain
consumer records for a minimum of five years from date of last service and for
five years following a child’s eighteenth birthday if service ends prior to
that time. Conversion of paper records to an electronic copy and destruction of
paper is acceptable.
28.6. The provider shall have a policy regarding
disposal of records which respects confidentiality and security of consumer
information.
28.7. The format of electronically transmitted data
shall comply with legal standards and requirements.
§64-11-29. Contractual relationships.
29.1. If the provider arranges externally or
contractually for the provision of consumer services, the provider shall have a
written agreement which specifies:
29.1.a. Roles and responsibilities of the provider
and the subordinate service provider;
29.1.b. A guarantee that the subcontracting provider
shall obtain and provide copies of information regarding employees to
demonstrate that the employee is in compliance with the regulatory and/or risk
management needs of the provider.
29.1.c. Clinical documentation required of the
subordinate service provider(s) with time lines for provision of the
documentation;
29.1.d. Services to be provided;
29.1.e. Provision of appropriate liability or
malpractice insurance either by the contractor or subordinate provider;
29.1.f. A general definition of the consumers to be
served; and
29.1.g. That the subordinate provider shall adhere to
state and federal requirements of confidentiality.
29.2. The provider shall maintain a file on each
contracted subordinate provider, including:
29.2.a. Evidence of appropriate training, licensure
or certification; and
29.2.b. Evidence of malpractice or liability
insurance as specified in the contract.
§64-11-30. Financial management system.
30.1. The provider shall have a written budget,
approved by the governing body if there is one, that shall serve as a plan for
managing its financial resources for the fiscal year.
30.2. The provider shall have established financial
management policies and procedures that follow generally accepted accounting
principles (GAAP).
§64-11-31. Financial accountability for consumer funds.
31.1. A provider that assumes fiduciary
responsibility for client funds shall have written operational procedures that
ensure:
31.1.a. Separate individual accounting of funds with
quarterly statements to the consumer and his or her DLR, if any. Funds managed on behalf of clients shall not
be commingled with provider funds;
31.1.a.
Compliance with applicable legislative, judicial and governmental requirements,
including those applying to payment of benefits allotted by the state or
federal government.
§64-11-32. Management of human resources.
32.1. Deployment and supervision of staff.
31.1.a. The provider shall have a system of staff
supervision that is tailored to the provider’s model of service delivery and
uses individual and/or group supervision on a regularly scheduled basis.
31.1.b. The provider shall identify an individual
responsible for overall administration of the program for each site.
31.1.c. The provider shall develop a process that
ensures appropriate supervision of direct service staff. Each staff person on
duty shall have access to a supervisory staff person by telephone or face to
face contact within thirty minutes of an initial attempt at supervisory
contact.
32.2. Personnel practices.
32.2.a. Upon employment, the provider shall train
employees with regard to written policies and procedures pertaining to their
employment and job responsibilities.
32.2.b. The provider shall have policies which shall
comply with federal and state statutes, rules and regulations regarding
employment practices.
32.2.c. The provider shall review with the applicant
a written job description at the time of the interview and provide a copy of a
written job description upon employment and upon significant changes in job
assignment or responsibilities, provide a modified job description.
32.2.d. The provider shall submit a request for a
Criminal Identification Bureau (CIB) records check and a Protective Services records check in
the manner required by the secretary on each potential employee prior to
working with consumers.
32.2.e. The provider may use applicants for
employment prior to receiving the result of the records check under the
following conditions:
32.2.e.1. The applicant’s information has been
submitted for clearance; and
32.2.e.2. The employee is informed in writing that
final approval for employment is contingent upon the receipt of an acceptable
CIB and/or other check as mandated by the secretary.
32.2.f. Provider policy shall prohibit employment of
staff or utilization of volunteers or contractors with responsibility for care
and supervision of consumers who have a history of convictions for or
substantiation through the Protective Service or Office of the Inspector
General systems of;
32.2.f.1. Abduction;
32.2.f.2. Any violent felony crime including, but not
limited to, rape, sexual assault, homicide, felonious physical assault or
felonious battery;
32.2.f.3. Child or protected adult abuse or neglect;
32.2.f.4. Crimes which involve the financial or other
exploitation of a child or an incapacitated adult;
32.2.f.5. Felony arson;
32.2.f.6. Felony drug related offenses within the last
ten years;
32.2.f.7. Felony DUI within the last ten years;
32.2.f.8. Hate crimes;
32.2.f.9. Neglect or abuse by a caregiver;
32.2.f.10. Pornography related crimes involving children
or incapacitated adults;
32.2.f.11. Purchase or sale of a child; or
32.2.f.12. Sexual offenses including, but not limited
to, incest, sexual abuse, or indecent exposure.
32.2.g. The provider may apply to the secretary for a
written waiver of employment restrictions on a case by case basis depending on
the particulars of the conviction or substantiation.
32.2.h. The provider shall have a policy and required
training process for all employees with regard to mandatory reporting of
allegations of consumer abuse or neglect.
32.2.i. The provider shall have a written job
description and selection criteria for each position or group of similar
positions that includes the position’s qualifications, and responsibilities and
the title of the position’s supervisor.
32.2.j. The provider shall designate a supervisor for
each separate service or program. A supervisor may be responsible for more than
one program.
32.2.k. The provider shall employ persons who are
qualified according to the job description and selection criteria for the
positions they occupy. A provider
employing any person who does not possess the qualifications noted in the
position’s job description shall have a written statement justifying the
individual’s employment.
32.2.l. The provider shall verify the credentials of
all employees and contractors providing client care, including:
32.2.l.1. Education and training;
32.2.l.2. Applicants without a high school diploma or
GED must demonstrate competencies required of the job. The provider will have and follow a policy
for these employees;
32.2.l.3. Relevant experience; and
32.2.l.
4. State licensing or certification for
their respective disciplines, if any.
32.2.m. If the job description requires professional
licensure or certification, but an employee under supervision for licensure or
certification is employed in the position, the provider shall demonstrate that:
32.2.m.1. A person with requisite credentials provides
supervision to the staff; and
32.2.m.2. The staff is actively working toward
licensure and/or certification.
32.2.n. This requirement shall not be construed to
apply to individuals performing job duties that would not normally require
licensure or certification.
32.3. Volunteers.
32.3.a. The provider shall have a policy which
specifies the roles and responsibilities that volunteers shall assume.
32.3.b. The provider shall ensure that volunteers
receive regular supervision to provide assistance, directions for activity and
support.
32.3.c. Any documentation provided by volunteers to
be placed in a clinical record shall include the date and signature of the
volunteer’s on-site supervisor prior to being placed in the record.
32.3.d. The provider shall train volunteers
concerning the responsibilities of the position and the time commitments
required prior to formal assignment.
32.3.e. The provider shall formally train volunteers
in confidentiality prior to beginning their duties and shall maintain
documentation of the training.
32.3.f. The provider shall have a policy requiring
volunteer screening, which shall include criminal and protective services
background checks on all volunteers with responsibility for care and
supervision of consumers, as required by department policy. Department policy shall
address the background clearance of volunteers, including a clarification of
those volunteers who should receive clearance and the process for doing so.
32.4. Students.
32.4.a. Students serving less than thirty hours per
quarter shall be continually supervised by staff and shall not work alone with
consumers.
32.4.b. The provider shall have a policy which
specifies the roles and responsibilities that students may assume.
32.4.c. Students serving an academic placement of
more than thirty hours on site per three month quarter may work with consumers
independently as defined by provider policy however the provider shall ensure
that students receive regular documented supervision in order to provide
assistance, directions for activity and support.
32.4.d. Students of this type shall receive training
in abuse, neglect and mandatory reporting.
32.4.e. Any documentation provided by students to be
placed in a clinical record shall include the date and signature of the
student’s on-site supervisor prior to being placed in the record.
32.4.f. The provider shall formally train all
students in confidentiality prior to beginning their duties and shall maintain
documentation of the training.
32.5. Employee, volunteer, and student records.
32.5.a. The provider shall maintain current records
for all employees and for students and volunteers working directly with
consumers and spending regularly scheduled time in the provider’s or consumer’s
locations. These records shall contain,
as appropriate:
32.5.a.1. Identifying information and emergency
contacts;
32.5.a.2. An application for employment or resume (for
employees only);
32.5.a.3. A job description or contract;
32.5.a.4. Reference verification (for employees);
32.5.a.5. Documentation of education and/or licensure
or certification (for employees);
32.5.a.6. Documentation of relevant education or
experience as appropriate;
32.5.a.7. Documentation of orientation and required
trainings;
32.5.a.8. Documentation of criminal and protective
services background checks for employees and volunteers and students as
required by the secretary; and
32.5.a.9. Documentation relating to performance,
including disciplinary actions and termination summaries.
32.5.b. Each employee shall have a record, stored
separately, containing the employee’s results of random drug screens if
required by provider policy.
32.5.c. The files shall be secured in a confidential
manner with limited access.
32.5.d. Students touring, observing or on site less
than thirty hours per three month quarter are not included in the requirements
of this section.
32.6. Disciplinary reviews and termination. The provider
shall have a policy which delineates procedures governing disciplinary actions
and nonvoluntary termination of staff.
32.7. Orientation of new staff.
32.7.a. The provider shall ensure that all new
clinical staff receive an orientation within the first ten days of employment and
shall document that orientation in the individual’s personnel record. The
orientation shall include an introduction to the staff person’s primary job
responsibilities and requirements.
32.7.b. Within the first thirty days of employment or
initiation, the provider shall also train all new staff in:
32.7.b.1. Its mission, philosophy and goals;
32.7.b.2. Its services, policies and procedures
pertaining to the employee, contract clinician, student, or volunteer’s job
responsibilities;
32.7.b.3. An organizational chart that delineates lines
of accountability and authority pertaining to the employee, contract clinician,
student, or volunteer’s job responsibilities;
32.7.b.4. The provider’s policies and procedures on
consumer confidentiality and disclosure of information, including penalties for
violation of these policies and procedures and an orientation to federal
confidentiality requirements as they apply to the provider;
32.7.b.5. Consumer rights;
32.7.b.6. Universal precautions;
32.7.b.7. Training on identification of abuse and
neglect and mandatory reporting procedures;
32.7.b.8. Appropriate identification and documentation
of incidents;
32.7.b.9. Sensitivity to differences in cultural norms
and values;
32.7.b.10. Proper documentation procedures;
32.7.b.11. CPR, the abdominal thrust and first aid;
updated as required;
32.7.b.12. Fire drills and evacuation procedures (if
applicable); and
32.7.b.13. Procedures regarding medical or other
emergencies (if applicable).
32.7.c. Additionally, except for outpatient clinical
staff providing only clinic behavioral health services, program staff with
direct care responsibilities in-home or site-based programs shall be trained
within thirty days upon:
32.7.c.1. Psychiatric emergency procedures and management
including systematic de-escalation;
32.7.c.2. Blood borne pathogens; and
32.7.c.3. Infection control.
32.8. Until the training is completed, the staff
person shall not work unless accompanied at all times by a staff member who is
experienced and knowledgeable in these areas.
32.9. The provider shall document all training
provided to staff.
§64-11-33. Service environment.
33-1. Safety and Environmental Quality.
33-1.a. The provider shall provide services in an
environment (buildings, grounds and equipment) that meets all applicable
federal, state and local health, building, safety and fire codes unless the
location for provision of service is the consumer’s home or another community
based location not owned or leased by the provider.
33-1.b. All structures and equipment owned or leased
by the provider shall be maintained free from danger to health and safety.
33-1.c. Facilities and buildings owned, leased or
rented by the provider for use with consumers shall be clean, safe, accessible,
and appropriate for the needs of the consumer.
33-1.d. The provider shall post by the telephone in
all provider owned or leased direct care and residential service locations
emergency telephone numbers for the fire department, poison control hotline,
and local police.
33-1.e. Buildings owned or leased by the provider
shall be in compliance with Title III of the Americans with Disabilities Act
unless otherwise exempted.
33-1.f. All buildings owned, leased, or rented by the
provider for consumer use shall conform to the current Life Safety Code of the
National Fire Protection Association, unless exempted by the State Fire Marshal.
33-1.g. The provider shall have documentation that
the facilities owned or leased by the provider and used for services are in
substantial compliance with the State Fire Code. That evidence shall be renewed
as required by the State Fire Marshal.
33-1.h. The provider shall have fire extinguishers
reviewed by a qualified professional annually.
33-1.i. All power driven equipment used by a facility
shall be kept in safe and good repair.
The equipment shall be used by consumers only under the supervision of a
staff member.
33.2. Food services
33.2.a. If food services are provided or if food is
managed by the provider in a consumer residence owned or leased by the
provider, food shall be stored, prepared and served in a sanitary manner.
33.2.b. Where applicable, The provider shall conform to the requirements for food
service as specified by the Department’s rule, “Food Establishments”, 64CSR17.
§64-11-34. Compliance with legal, health and regulatory
requirements.
34.1. Emergency planning and response.
This is covered under Enviornmental Quality
34.1.a. The provider shall have procedures in place
for responding to accidents, serious illness, fire, medical emergencies,
floods, natural disasters and other life threatening situations that:
34.1.a.1. Address the needs of any special population
served by the provider;
34.1.a.2. Specify evacuation procedures including an
evacuation site, parties to notify, and emergency items to take when
evacuating;
34.1.a.3. Describe relocation plans for the service
and/or program if it becomes necessary; and
34.1.a.4. Specify appropriate responses to medical
emergencies.
34.1.b. The provider shall have procedures in place
for dealing with consumers or other individuals who threaten violence or harm
to themselves or others including staff and other consumers.
34.2. Medication control and administration.
34.2.a. Prescription Medication shall be prescribed
and monitored by a licensed physician, dentist or physician’s assistant or
nurse practitioner. Contracted medical staff functioning on the provider’s
premises is responsible for complying with provider policies and
procedures. The physicians and other
staff shall have files containing the materials or information specified in
this rule.
34.2.b. Providers that administer medication using
approved medication assistive personnel shall comply with the department’s
rule, “Medication Administration by Unlicensed Personnel”, 64 CSR 60.
34.2.c. When medication is administered by the
provider, the organization shall ensure that there is an individual record for
those consumers who receive medications to include:
34.2.c.1. Medications administered;
34.2.c.2. The date medications were administered;
34.2.c.3. The time of administration (medications are
to be administered within one hour of the prescribed time unless otherwise
allowed by physician’s order); and
34.2.c.4. The individual administering the medication;
and
34.2.d. A record of missed medications and the
reason. Prescription medications administered by the provider shall be properly
labeled and packaged and include:
34.2.d.1. The name of the person served;
34.2.d.2. The route of administration;
34.2.d.3. The dosage and the name of the medication;
34.2.d.4. The name of the prescribing physician; and
34.2.d.5. An expiration date.
34.2.e. The provider shall have written procedures
that govern:
34.2.e.1. The safe disposal of discontinued,
out-of-date or unused medications, syringes, medical waste or medication; and
34.2.e.2. Provision for locked, supervised storage of
medications with access limited to authorized staff.
34.2.f. Medication samples are considered to be the
property of the provider. Samples shall be stored in a systematic fashion in a
locked area with limited access to unauthorized staff or consumers. The
provider shall document distribution of sample medications in the consumer
medical record.
34.2.g. If a provider both prescribes and administers
medications, only licensed nursing staff shall accept verbal orders for changes
in medication regimens. These shall be
signed by the prescribing physician within one week.
34.2.h. A registered or practical nurse shall be
responsible for:
34.2.h.1. Generating and reviewing monthly Medication
Administration Records;
34.2.h.2. Matching physician’s orders or prescriptions
to the medication administration records;
34.2.h.3. Assisting interdisciplinary teams to develop
educational goals for consumers taking regularly prescribed medications and
participating in a supervised self-administration protocol as identified in the
consumer’s plan for services;
34.2.h.4. Instructing staff in dietary or medication
administration issues as necessary; and
34.2.h.5. Responding to emergency calls from staff on
medical issues.
34.2.i. Medications shall be self-administered under
supervision of staff under the following conditions:
34.2.i.1. As part of the consumer’s plan of care, he or she is taught
to identify his or her medications, recognize possible side effects, describe
the purpose for the medication and indicate the time of day and frequency of
which he or she is to take the medications;
34.2.i.2. The consumer is assessed by either a
registered nurse, physician or licensed psychologist as being cognitively
capable of learning these skills;
34.2.i.3. Medication is kept in a secure location with
access limited to staff only except at dosage times;
34.2.i.4. Staff is fully trained as to the purpose,
most common side effects and dangers of each medication prescribed for
consumers in the facility or home, and can identify each medication on sight or
have access to mechanism for which to identify; and
34.2.i.5. Staff is trained in emergency procedures for
overdose or adverse reactions.
34.2.j. Delivering and monitoring medications in a
consumer’s place of residence:
If a
provider delivers medications to a consumer on a regular basis, the provider
must:
34.2.i.1. Document delivery date, time, person
receiving and name of medication delivered including amount delivered;
34.2.i.2. Ensure that if there are children or other
incapacitated adults in the home, medications are at least initially stored
properly in secured containers;
34.2.i.3. Provide medications in properly packaged
format as required by Chapter 30, Article 5 of the West Virginia Code; and
34.2.i.4. Develop a system of monitoring the consumer’s
compliance with consumption of medications that is created with the permission
and participation of the consumer. This system may consist of the consumer
logging consumption of his or her own medications. The consumer has the right
to refuse participation in a monitoring system however the provider may then
refuse to deliver medications to the consumer’s residence and/or make
alternative arrangements for the provision of medications.
§64-11-35. Services.
35.1. Admission.
35.1.a. The program must be appropriate for the needs
of the consumer.
35.1.b. If after the consumer is admitted, the
program is unable to meet his/her needs, the provider shall discharge the
consumer and is responsible for referral of the consumer to an alternative
level of care and/or provider.
35.2. Assessments/intake procedures.
35.2.a. Each consumer entering or reentering a
provider program shall have an assessment by an appropriately qualified staff
person (as identified by the provider credentialing committee or officer) prior
to or within forty-eight hours of admission.
35.2.b. Assessments from other provider entities are
acceptable if comprehensive and performed within the past sixty days.
35.2.c. A consumer reentering a program within a
twelve month period may receive an abbreviated assessment. A consumer entering
a program based on an assessment performed by another agency within the past sixty
days may receive an abbreviated assessment. These assessments and updates must
be available in the consumer record.
35.2.d. The initial assessment shall review the
consumer’s psychiatric and psychosocial history, history of medical and
psychiatric treatment, current mental status, current medical and psychiatric
status with regard to health and medications prescribed, evaluation of suicidal
or homicidal ideation, presenting problems as identified objectively and
subjectively, and summarize the consumer’s needs and preferences.
35.2.e. An abbreviated assessment shall review the
current mental status, presenting problems identified objectively and
subjectively, current medical and psychiatric status with regard to health and
medications prescribed, and a summary of consumer needs and preferences.
35.2.f. The consumer’s plan of services shall be
based on the most recent assessment.
35.2.g. The consumer’s assessment must record any
reported life-threatening medical conditions, allergies, or dietary
restrictions. The plan for services must define the provider’s responsibility
in management of such conditions, if any, while the consumer is on the
provider’s site or under the provider’s supervision. The notification must be
posted in the record in a way that is accessible to all staff working with the
consumer or there must be documentation that staff has been advised of such
conditions.
35.3. Planning for services.
35.3.a. The provider shall ensure each consumer has a
plan of service in a format consistent with the type of service the consumer
receives. The plan of service shall be
reviewed at intervals specified by provider policy and updated or modified as
necessary.
35.3.b. The consumer shall have the right and the
responsibility to participate in the development of the plan of services to the
extent that the consumer is willing and medically and behaviorally able.
35.3.c. If the consumer has an advanced psychiatric
directive, the provider shall honor the directions provided in the advanced
directive to the best of the provider’s ability.
35.4. Participation of the DLR in planning for
services.
35.4.a. The provider must obtain permission from the
DLR prior to initiating treatment except in emergent conditions.
35.4.b. If the consumer has a DLR whose scope of
responsibility appropriately includes assisting in and/or directing planning
for services for the consumer, the provider is responsible for documenting that
the DLR has been informed of all meetings and activities regarding planning.
The provider must document a good faith effort to involve the DLR in the
planning and review processes. The DLR is entitled to participate in the manner
he or she chooses, including by telephone or video conference.
35.4.c. If the provider has documented attempts to
involve the DLR in the planning process without success, the provider may
continue the current plan for service for up to thirty days past its expiration
date while alternative plans are made to meet the needs of the consumer or to
obtain DLR permission.
35.5. Clinic behavioral health services.
35.5.a. If the consumer is receiving only clinic
behavioral health services from the provider, the provider shall ensure the
health care professional responsible for the service has a treatment strategy
that is reasonable and appropriate given the consumer’s initial and on-going
assessments.
35.5.b. The strategy must be described in documentation
of each consumer contact.
35.5.c. Documentation of clinic behavioral health
services shall include:
35.c.1. A subjective and objective assessment of the
consumer, including a description of any recent unusual events that may have an
impact on the consumer’s treatment;
35.c.2. An assessment of the effectiveness of the
treatment approach; and
35.c.3. A plan to continue or modify the treatment
approach as necessary.
35.d. Each consumer receiving a service shall have
a plan of services, except as described above.
35.6. Initial plan of service.
35.6.a. When the consumer is admitted to a provider
agency, he or she shall have an initial plan of service at the conclusion of
the admission process.
35.6.b. This plan shall consist of the following at a
minimum:
35.6.b.1. Description of any further assessments or
referrals that may need to be performed;
35.6.b.2. A listing of immediate interventions to be
provided along with some basic objectives for the interventions;
35.6.b.3. A date for development of an expanded plan of
services. The designated date must be appropriate for the planned length of
service but at no time will that exceed thirty days from the date of the
signing of the initial plan; and
35.6.b.4. The signature of the consumer and/or DLR,
intake worker, and other persons participating in the development of the
initial plan. If a party is
participating by phone, video or other means a notation on the plan is
acceptable.
35.7. Expanded plan of services.
35.7.a. The expanded plan of services is developed
when a consumer is receiving a variety of services from a single provider
provided that if all services are clinic behavioral health services, no
expanded plan is required.
35.7.b. The expanded plan shall relate directly to
the consumer’s initial and/or any subsequent assessments or information
regarding the consumer, shall include all services provided to the consumer by
the provider developing the plan, and shall consist of the following:
35.7.b.1. Date of development of the plan;
35.7.b.2. Participants in the development of the plan;
35.7.b.3. A statement or statements of the goal(s) of
services in general terms;
35.7.b.4. A listing of specific objectives relating to
each goal unless the services are supportive in nature;
35.7.b.5. The measures to be used in tracking progress
toward achievement of an objective, unless the services to be provided are
supportive services;
35.7.b.6. The technique(s) and/or services to be used
in achieving the objective unless the services are supportive;
35.7.b.7. Identification of the individuals responsible
for implementing the services relating to the statement(s) of objectives; and
35.7.b.8. A date for review of the plan.
35.7.c. The date for review shall be reasonable given
the projected duration of treatment but at no time shall exceed one hundred
eighty days days.
35.7.d. Selected objectives may be reviewed earlier
than the scheduled plan review as desired by the consumer or provider.
35.7.e. Plans for supportive services are incorporated
into the expanded plan of service and shall include:
35.7.e.1. Services to be provided;
35.7.e.2. How often;
35.7.e.3. By whom; and
35.7.e.4. The objectives of the support.
35.7.f. Objectives of supportive services may be
stated in simple terms and outcomes need not be stated in measureable terms.
Maintenance of health, daily living skills or functionality may be an objective
for a supportive service.
35.7.g. If the consumer is receiving only supportive
services, the plan shall be reviewed at a minimum of each one hundred days.
Date of the planned review shall be recorded on the plan for services.
35.8. Multiprovider comprehensive plans of service.
35.8.a. If a consumer is receiving a combination of
behavioral health and/or supports services from a team of provider agencies,
the consumer shall have a comprehensive plan of services.
35.8.b. All providers participating in the provision
of service to the consumer shall be represented in the development of the
comprehensive plan, as shall the consumer and/or DLR as appropriate.
Representation shall be documented by signature of the parties involved in the
development of the comprehensive plan.
35.8.c. The team must be made aware of any advanced
directives made by the consumer or any instructions for care imposed by the
DLR. These directives must be included as an addendum to the plan.
35.8.d. Unless the team decides otherwise,
comprehensive plans are completed by a service coordination provider who is
responsible for tracking the implementation of the plan and organizing the
reviews of the plan and subsequent modifications. The service coordination
provider must be identified in the plan.
35.8.e. The comprehensive plan must clarify which
provider agency is responsible for each aspect of the plan. Objectives for
behavioral health treatment, habilitation and rehabilitation services must be
specific and measured, as described in section.
35.8.f. It is the responsibility of the service
coordination provider to ensure that each member of the provider team including
the consumer and/or DLR has a copy of the plan within seven working days of its
completion.
35.8.g. The comprehensive planning process shall
culminate in an agreed date for review of progress in reaching the objectives
described in the plan.
35.9. Reviews of plans of service.
35.9.a. The review shall be documented and shall
consist of examination by the team or provider of progress toward achievement
of an objective using the measurements described in the plan or in the case of
supportive services, an evaluation of achievement of maintenance objectives.
35.9.b. The consumer and DLR is expected to be
present at the scheduled review. If the consumer and/or DLR are not present,
the reason for holding the review in their absence shall be documented and for
good cause.
35.9.c. The provider shall modify objectives and/or
goals if the planned interventions have not produced evidence of improvement or
maintenance, if such is the stated goal, within an amount of time to be
identified in advance by the clinical team.
35.9.d. The goals or objectives on a plan may be
modified if desired by the consumer or DLR.
35.9.e. At the conclusion of the review, a date shall
be set for the next review. Revisions to the behavioral health service plan
shall be made if necessary or a new plan may be developed.
35.10. Critical treatment junctures.
35.10.a. The provider and consumer shall meet to
review and modify the consumer’s treatment or supports services at a critical
treatment juncture.
35.10.b. The team may decide to review all of the plan
of services, or only a segment of the plan of services. Regardless of the
extent of the review, it must be documented and a date identified for the
subsequent review of the plan in its entirety, not to exceed one hundred eighty
days from the last review of the entirety of the plan.
35.10.c. The consumer and/or the DLR should be
provided with a copy of the plan for services and any review documents.
35.10.d. If a critical treatment juncture occurs for a
consumer who has a comprehensive plan for services, the members of the team
must be informed of the situation and participate in a decision regarding the
need for the team to meet. Participation in this decision may be by telephone
or other electronic or digital method.
35.11. Discharge planning.
35.11.a. Each provider shall have a policy and
procedure regarding discharge of the consumer from services.
35.11.b. Such policies shall promote an organized
transition to another provider, level or type of care or to full independence
from treatment/support.
35.11.c. With consumer and/or DLR permission, the
provider is responsible for ensuring that sufficient information is provided to
an alternative provider to enable a smooth transition of care.
35.11.d. The provider is responsible for offering
transitional services within the financial and staff resources available. If
the consumer is an incapacitated adult, the transitional services should be
individualized and delivered in a manner that facilitates the individual’s movement
from one health care setting to another.
35.12. Special services and populations. If a provider provides specialized services
to a unique population the provider shall ensure that:
35.12.a. The service and clinical model reflects
knowledge and use of research based and theory guided practices;
35.12.b. Clinical and professional staff are
appropriately trained, certified and/or licensed in the area of service
provided;
35.12.c. Direct care staff are trained to understand
issues in clinical treatment of the population and able to use suitable
intervention techniques when necessary and appropriate;
35.12.d. The environment and milieu of the treatment
location is clinically, structurally and developmentally appropriate for the
population served; and
35.12.e. The facility is consistent with the
consumer’s treatment plan. In cases in which a staff ratio is not specified in
the consumer’s plan of care, the provider shall assure that sufficient staff is
present to enable consumer safety.
§64-11-36. Abuse, neglect and critical incidents.
36.1. The provider shall report, investigate
monitor and remediate consumer-related incidents in a manner consistent with
minimum current guidelines, “Reporting and Investigation Guidelines for
Incidents involving a Licensed Behavioral Health Services and Supports
Provider”, set forth by the secretary and made available by the secretary to
providers and the public.
36.2. These guidelines shall be amended as
necessary through a participative process including consultation with providers
and consumers and other stakeholders.
36.3. The provider’s policy regarding abuse and
neglect may allow the provider a range of remediation alternatives with the
employee depending upon the severity of the incident and the possibility of
successful remediation.
36.4. These guidelines represent a minimum standard
of investigation and correction. Third party payers or providers may
voluntarily require a more stringent level of correction.
36.5. Incidents shall be evaluated by the provider’s
designated representative and classified as one of the following:
36.5.a. An allegation of abuse and/or neglect;
36.5.b. A critical incident; or
36.5.c. An incident requiring provider monitoring and
correction.
§64-11-37. Abuse and neglect.
37.1. WV Code 9-6-11(a) and WV Code 49-1-201
require that upon notification that an incident has occurred, the provider
immediately report the neglect, abuse, and/or suspected neglect or abuse of an
incapacitated adult or a child, or an emergency situation representing hazard
to such an adult or a child to the secretary’s local protective services
agency.
37.2. Additionally, a provider shall immediately
report the neglect, abuse, and/or suspected neglect or abuse of any consumer
who receives services from a provider licensed under the conditions of this
rule. This requirement mandates self-reporting of neglect, abuse, and/or
suspected neglect or abuse by the servicing provider.
37.3. The initial report shall be made by telephone
followed by a written report by the complainant or the receiving agency within
forty-eight hours.
37.4. All employees of a provider are considered to
be mandatory reporters as defined in section 9-6-11.
37.5. A consumer has the right to report any
suspicion of abuse or neglect to civil and criminal authorities in accordance
with the adult protective services act, in addition to using the grievance
procedure of the provider.
§64-11-38. Critical incident.
38.1. The provider must keep a central file of
critical incidents for review by the secretary upon request.
38.2. The file shall contain a description of the
incident, actions taken by the provider to mitigate the incident and, at
minimum, a description of systemic corrective action taken by the provider, if
any, as a result of the provider investigation, utilizing unique but
confidential consumer identifiers.
38.3. In the case of a critical incident involving
an incapacitated adult, the provider shall follow department policy with regard
to reporting such events to the secretary.
§64-11-39. Noncritical incidents.
Noncritical
incidents must be documented, reviewed by a supervisory staff person,
investigated if necessary and filed in the central investigation file.
§64-11-40. Quality assurance.
The provider
shall ensure that the central file of reports of abuse, neglect, critical and
noncritical incidents is reviewed, collated by the Continuous Quality
Improvement Committee
or staff person and reported to the governing body on an annual basis. The file
should be representative of efforts by the provider to utilize information to
improve provider policy, procedure, or performance.
§64-11-41. Injuries of unknown source.
41.1. An injury should be considered an “injury of
unknown source” when:
41.1.a. The source of the injury was not witnessed by
any person and the source of the injury could not be explained by the consumer;
and
41.1.b. The injury raises suspicions of possible
abuse or neglect because of the extent of the injury or the location of the
injury (e.g., the injury is located in an area not generally vulnerable to
trauma) or the number of injuries observed at one particular point in time or
the incidence of injuries over time.
41.2. Minor occurrences which are not of serious
consequence to the individual and do not present as a suspicious or repetitive
injury (as discussed above) should be recorded by the facility staff once they
are aware of them and follow-up should be conducted as indicated.
41.3. If, however, the injury meets both criteria
listed above, the injury or injuries must be reported and investigated as
required by the secretary.
41.4. For injuries that do not rise to the level of
reportable “injuries of unknown source”, the facility should follow its
policies and procedures for monitoring and trending such occurrences.
§64-11-42. Management of continued inappropriate
behavior.
42.1. The provider shall have a policy for
management of regularly occurring inappropriate behavior on the part of
incapacitated or minor consumers.
42.2. The functional assessment may result in
informal environmental alterations and/or in the development of a written plan
for intervention.
42.3. Only trained staff may be responsible for
performing functional assessments of behavior and developing and monitoring
plans for intervention.
42.4. Implementing staff shall be oriented to and
fully trained on all behavior management plans for consumers with whom they are
working. Training shall include demonstration of the procedures to be utilized.
42.5. Behavioral interventions shall:
42.5.a. Be planned and approved by the service
planning team;
42.5.b. Be individualized, consumer-centered, capable
of implementation within the resources available and applied consistently in
all environments managed by the service team;
42.5.c. Be based on a functional assessment of the
inappropriate behavior;
42.5.d. Utilize positive behavior techniques that
focus on replacing inappropriate behaviors with more productive prosocial
behaviors;
42.5.e. Be based on fundamental principles of
behavior;
42.5.f. Be data-based and monitored on an on-going
basis; and
42.5.g. Be amended in a timely fashion if necessary.
42.6. The following aversive consequences are not
to be utilized by providers:
42.6.a. Corporal punishment;
42.6.b. Deprivation of basic human rights;
42.6.c. Treatment of a demeaning nature;
42.6.d. Noxious or painful stimuli; and
42.6.e. Deprivation of nutrition or hydration,
excluding dietary or fluid restrictions ordered by a physician.
42.7. Restraint techniques shall only be incorporated
into a behavioral intervention if it is used as an intervention of last resort
and only when the targeted behavior is immediately dangerous to the consumer or
others in the environment.
§64-11-43. Emergency management of potentially dangerous
behavior.
43.1. The provider shall have in place policies and
procedures regarding emergency management of potentially dangerous consumer
behavior.
43.2. Seclusion is not an intervention permitted in
any licensed community-based program, with the exception of a psychiatric residential treatment facility for
children and/or youth.
43.3. Staff shall be trained and able to
demonstrate competency in systematic de-escalation procedures as part of
orientation. Training shall be renewed at intervals determined by provider
policy.
43.4. Staff must have education, training and
demonstrated knowledge based upon the specific needs of consumers being served.
Training will consist at a minimum of:
43.4.a. Techniques to identify staff and consumer
behaviors, events and environmental factors that may trigger potentially
dangerous behavior;
43.4.b. Use of nonphysical intervention skills;
43.4.c. Selection of least restrictive/least
intrusive intervention based on individualized assessment, and
43.4. Safe application of restraint as a last
resort if provider policy allows restraint as an intervention.
43.5. Physical, mechanical or chemical restraints
may be used only as a last resort for the management of dangerous, violent or
self-destructive behavior that is an immediate threat to the consumer’s
physical safety or the safety of others in the immediate environment.
43.6. A restraint does not include devices such as
orthopedically prescribed devices, surgical dressings or bandages, protective
helmets, lap belts on wheel chairs utilized for support, or other methods that
involve the physical holding of a consumer for the purpose of conducting
routine physical examinations or tests, or to protect the consumer from falling
out of bed, or to permit the consumer to participate in activities without the
risk of physical harm.
43.7. All supportive or protective devices should
be assessed by the team for safety and appropriateness at annual intervals or
more frequently as determined by provider policy.
43.8. Redirection through physical prompting and/or
hand over hand instruction is not to be considered a restraint.
43.9. Restraint may only be used when less
intrusive interventions have been exercised and determined to be ineffective to
protect the consumer or others from harm. No restraint may be utilized for more
than a half hour without review of the consumer’s condition by an agency
designated staff.
43.10. The use of restraint must be implemented in
accordance with safe and appropriate techniques.
43.11. The restraint must be discontinued at the
earliest possible time.
43.12. Documentation in the consumer's record must
include the following:
43.12.a. A description of the consumer's behavior and
the danger it posed to self or others;
43.12.b. A description of the alternatives or other
less intrusive interventions that were attempted prior to the restraint;
43.12.c. A description of the intervention used, including the duration
of the restraint if physical or mechanical or dosage if chemical; and
43.12.d. The consumer's response to all the
intervention(s) used.
43.13. Debriefing of the restraint is a required
aspect of provider policy with regard to restraints.
43.14. If a consumer receiving extended services
exhibits a behavior which is immediately dangerous to him or herself and/or
others at a rate of three or more times in a six month period, the provider
shall consider convening the clinical team to develop a written plan for
behavioral intervention.
§64-11-44. Medical/dental procedures for incapacitated
adults and children with developmental disabilities.
44.1. Whenever possible, a desensitization
procedure should be developed in advance to prepare incapacitated adults and
children with developmental disabilities for a medical or dental procedure.;
44.2. If the desensitization procedure is not
successful in easing the consumer’s agitation, anxiety or fear, medicinal
interventions are to be used in preference to mechanical restraints unless
otherwise agreed by the clinical team;
44.3. All efforts to prepare and manage a consumer
during a medical or dental procedure should be documented in the consumer’s
medical record.
§64-11-45. Special programs.
Special
programs shall have additional standards of implementation as follows:
§64-11-46. Standards for respite and personal attendant
services.
46.1. Staff providing respite and personal
attendant services must receive the following training or orientation prior to
assuming care of a consumer:
46.1.a. Specific information pertaining to the needs,
preferences and medical issues of the consumer for whom the staff is assuming
care;
46.1.b. List of tasks for which the personal
attendant or respite provider is responsible, including any unusual
circumstances that could reasonably be predicted in advance;
46.1.c. List of emergency contacts including
emergency contact number for primary caregiver and for staff supervisor;
46.1.d. Training in any specific protocols contained
within the consumer’s plan for services as appropriate;
46.1.e. Review of mandatory reporting obligations;
46.1.f. Any emergency procedures unique to the
consumer and his/her medical or behavioral needs;
46.1.g. Orientation to the consumer’s home or other
service location; and
46.1.h. Boundary definition with regards to the
relationship of staff to primary caregiver, other family members, chain of
supervisory responsibility, appropriate use of consumer resources such as food
or equipment, other issues as necessary and appropriate.
46.2. Supervision of the respite or personal
attendant employee shall be the responsibility of the employing agency with
regular input and consultation by the primary caregiver and/or consumer. The
agency shall provide on-site supervision of staff on a regular schedule as
described by agency policy with the permission of the consumer and/or primary
caregiver. Supervision activities shall be documented by the agency.
46.3. If the respite or personal attendant service
is provided at a location away from the consumer’s primary residence, the
location must be safe and free from immediate threat of harm to the consumer.
The location must consider the needs and preferences of the consumer and
his/her primary caregiver.
46.4. The respite and/or personal attendant
provider is responsible for complying with applicable services or conditions
outlined in the consumer’s plan
for services during the
time in which the staff person is providing services for the consumer.
46.5. Documentation must include:
46.5.a. Any unusual incidents or events occurring
during the period;
46.5.b. A summary of the activities of the consumer
during the period;
46.5.c. Any health or behavioral issues which were of
significance during the period; and
46.5.d. Any medications that were taken by the
consumer during the period.
§64-11-47. Standards for residential services.
47.1. The provider must ensure that in home staff
has access to twenty-four
hour emergency telephone contacts for supervisory staff and for
parents/guardian.
47.2. The provider shall ensure that in home staff
has knowledge of mandatory reporting procedures and the reporting number must
be easily available in the home.
47.3. Staff must be trained in emergency evacuation
procedures.
47.4. The provider shall ensure availability in the
home of commonly needed company policies and procedures for staff reference.
The provider shall have a policy which identifies those sections of the
provider staff manual that will be available in the homes.
47.5. The provider is responsible for training
staff to be supportive of consumer:
47.5.a. Needs and preferences;
47.5.b. Behavioral and health management issues; and
47.5.c. Privacy.
47.6. The provider shall have a process in place to
address consideration of appropriate blending of consumer populations with
regard to sex, developmental age, activity level and consumer preferences in
congregate living situations.
47.7. The service environment shall be appropriate
to the physical and health needs of consumers and shall be safe from threat of
immediate harm for consumers and staff.
47.8. The provider will use reasonable efforts to
monitor and facilitate the consumer’s health within the resources available to
the consumer.
47.9. The provider is responsible for linkage and
referral to address the consumer’s acute medical and psychiatric health
concerns.
47.10. A referral must be made for basic primary
care at least once per year.
47.11. Health considerations should be incorporated
into a residential consumer’s plan of services and providers shall be
responsible for advocating that unmet needs be addressed if possible. The
service coordination agency shall be responsible for advocacy if the consumer
has a service coordinator.
47.12. If appropriate, the provider shall assist the
consumers in the service environment to develop a homelike atmosphere that
addresses the preferences of the individuals residing in the environment,
taking into consideration the financial resources of the residents.
47.13. The provider shall have a process in place
for facilitating choices of activity and home management that respects the
needs and preferences of the residents. The provider shall promote consumer
choices and control within the household to the degree possible and clinically
appropriate.
47.14. The provider shall develop and maintain a
process for communication from one shift of staff to the next that conveys
information necessary to conduct business in the home. Additionally the
provider shall supply a method of communicating information regarding consumers
from one shift to the next in a confidential manner. Such communication shall
include:
47.14.a. Any unusual incidents or events occurring
during the shift;
47.14.b. Any health or behavioral issues which were of
significance during the shift; and
47.14.c. Any medications that were taken by the
consumer(s) during the shift.
47.15. If the home is owned or leased by a provider,
it must have:
47.15.a. Adequate bedroom and living space for the
number of consumers living within the home;
47.15.b. Private space for storing personal items for
each consumer;
47.15.c. Adequate heating and cooling;
47.15.d. External windows in consumer bedrooms;
47.15.e. Hinged doors in bedroom doorways; and
47.15.f. Appropriate access for physically handicapped
or challenged consumers.
47.16. If the home is owned or leased by the
consumer or DLR, the provider will respect the consumer’s choice of living
environment and resources while advocating for adequate housing and living
conditions, provided that nothing obligates the provider to supply services in
an unsafe environment. If the provider suspects that an incapacitated consumer
is living in unsafe conditions, the provider is obligated to conform to
statutes regarding mandatory reporting.
§64-11-48. Standards for clinic behavioral health
service.
48.1. Staff providing clinic behavioral health
services shall be credentialed by the provider’s credentialing committee or
officer.
48.2. Each provider of clinic behavioral health
services must develop and maintain a working credentialing committee composed
of experienced licensed and/or certified staff representative of the
disciplines or practitioners within the agency. A provider agency with few
clinical staff may designate a credentialing officer. This committee or officer
is responsible for overseeing and assuring the following activities:
48.1.a. Written criteria shall be developed for each
type of service provided.
48.1.b. These criteria must identify the required
education, licensure, certification, training and experience necessary for each
staff person to perform each type of service. These criteria must be age and
disability specific to populations served as well as ensuring that staff has
demonstrated competency to provide the services rendered.
48.1.c. All documented evidence of credentials such
as educational transcripts, copies of professional licenses, certificates or
documents relating to the completion of training, letters of reference and
supervision, etc. shall be reviewed by the committee or officer. Based on this
review, the committee or officer shall determine which services staff are
qualified to provide. Documentation of the credentials review must be filed in
each staff person’s personnel file.
48.1.d. All
documented evidence of staff credentials (including university
transcripts/copies of diplomas, copies of professional licenses, and
certificates or documents relating to the completion of training) shall be
maintained in staff personnel records.
48.1.e. Staff must be assigned job responsibilities
that are within the scope of practice delineated by the credentials committee
or officer.
48.1.f. Providers shall develop standards for staff
training and continuing education, supervision and compliance monitoring.
48.1.g. All episodes of provision of clinic
behavioral health services shall be documented. Documentation shall be
sufficient to demonstrate:
48.1.a.1. That treatment, habilitation or
rehabilitation is based on the needs identified in the initial or on-going
assessments;
48.1.a.2. The response of the consumer to treatment,
habilitation or rehabilitation activities (preferably provided in both
subjective and objective terms and in the case of habilitation or
rehabilitation activities, data); and
48.1.a.3. Adjustments are being made to the treatment,
habilitation or rehabilitation approach as necessary and appropriate.
§64-11-49. Standards for twenty-four hour programs
requiring medical monitoring.
49.1. The provider must supply adequate staff
monitoring of individuals in the program either through “eyes on” or
technological methods. The initial plan of services will detail the necessary
monitoring which may be modified on an on-going basis as treatment moves
forward and the plan of services is revised.
49.2. A medical staff person such as a physician
extender, registered nurse or licensed practical nurse functioning within his
or her scope of practice must evaluate each patient in the program each shift
unless the physician documents no further need for medical monitoring, provided
that no such order can occur until the consumer has been in the program for twenty-four hours.
49.3. The provider must have a policy regarding the face to face or
telemedicine availability of medical staff to directly observe the patient after hours within thirty minutes as necessary
and appropriate unless an arrangement is made for alternative medical care.
49.4. Programs providing medical stabilization must
provide or arrange to obtain prescribed psychotropic and general medical
medications after initial review by admitting medical staff with prescriptive
authority.
49.5. Programs providing medical stabilization must
assist consumers in obtaining needed medications as part of discharge planning.
The provider shall have a policy with associated procedures regarding the
ability of consumers to retain personal medications if discharged against
medical advice.
§64-11-50. Standards for nonmethadone medication
assisted programs for addictions and cooccurring disorders.
50.1. The provider must ensure that the program
format includes initial and random urine or saliva drug screening as part of
the plan of service. Frequency of screening will be defined by provider policy
and in the plan of service, however screens must be comprehensive (eight to
twelve substances) and include the substance being prescribed by the program.
50.2. Individual and group therapy must be an
integral aspect of the program plan of service. The ratio of individual and
group must be individually determined by the needs of the consumer.
50.3. Prescription of benzodiazepine medications
for individuals in medication assisted programs is strongly discouraged. Cooccurring
use of benzodiazepines must be justified in the clinical record by a physician.
50.4. Standards for Intensive community-based
stabilization and maintenance programs:
50.4.a. The multidisciplinary team providing the
services must include medical participation or regular consultation.
50.4.b. Consumers must be provided the majority of
their services in their own homes by appropriately trained and qualified staff
in order to promote and sustain generalization of learning and independence.
50.4.c. Consumers must be clearly informed of methods
of contacting the team for emergency assistance.
50.4.d. The program content must assist the consumer
towards greater independence through prompting and training of adult living
skills, promotion of medication compliance as appropriate and necessary, and
offer development of advance directives.
50.4.e. If medication delivery is a part of the
service provided, the provider must comply with the rules detailed under the
section entitled “Delivering and monitoring medications in a consumer’s place
of residence”.
§64-11-51. Standards for residential treatment programs
for addictions and/or cooccurring disorders.
51.1. The intake assessment for the program must
include a review by a physician or physician extender of the physical health
status of the consumer and the appropriateness of his or her prescribed
medications. This review may have been conducted by a referring entity or other
medical party.
51.2. The
provider shall have a policy regarding screening for common chronic diseases
association with particular addictions. The policy must address infection
control and universal precautions for staff and other consumers as necessary
and appropriate.
51.3. The
provider is responsible for arranging the provision of medications deemed
necessary by the intake medical staff.
51.4. The
provider must ensure that medications brought to the program by consumers are
correctly identified and stored.
51.5. The
provider shall have a policy with associated procedures regarding the ability
of consumers to retain personal medications if discharged against medical
advice.
51.6. Consumers participating in such programs may
be required to contribute to program maintenance through performance of daily
assigned chores. As such, they may have unrestricted access to cleaning and
other supplies unless the team decides otherwise, provided potentially
intoxicating substances are held in a secure location and utilized only under
staff supervision.
51.7. Coeducational programs must have sleeping
areas clearly separated and monitored by staff. Consumers involved in coeducational
activities must be monitored by staff during both structured and unstructured
time.
51.8.
Programs need not be medically monitored however the provider must have a policy
which ensures that medication taken by consumers is:
51.8.a. Kept in a secure location;
51.8.b. Taken only under supervision of staff; and
51.8.c. Documented by the consumer with documentation
to be initialed by staff observing.
51.9. Aftercare arrangements must be detailed,
supportive, and an integral aspect of the discharge planning process.
51.10. Standards for twenty-four hour programs
accepting mothers with children:
51.10.a. Program content must include or arrange for
the provision of the following, as necessary and appropriate:
51.10.a.1. Parenting training;
51.10.a.2. Trauma recovery;
51.10.a.3. Assertiveness training;
51.10.a.4. Basic household maintenance; and
51.10.a.5. Budgeting and money management.
51.10.
b. The provider must have a policy
ensuring and monitoring the health, safety and welfare of children in the
program.
51.10.
c. School age children must be involved
in an appropriate educational program that ensures educational credit towards
graduation.
51.10.
d. Children must be properly supervised
by parent or staff at all times.
§64-11-52. Standards for locked behavioral health
programs.
52.1. The
secretary may authorize locking the facility housing a behavioral health
provider program under certain circumstances.
52.2. The
facility must meet the appropriate life safety standards of construction
required by the secretary and State Fire Marshal.
52.3. The
facility must be locked for the safety of consumers or other members of the
public and may not be locked solely for staff convenience.
52.4. The
clinical needs of the consumers must require specialized security measures for
their safety.
52.5. Staff
must be readily able to unlock doors at all times.
52.6.
Unannounced fire drills must be conducted at least once per quarter.
52.7.
Evacuation plans must be available for review by the secretary and staff on
every shift must be knowledgeable in their implementation.
52.8.
Staffing must be sufficient to provide for the safety of consumers twenty-four
hours per day.
52.9. The
need for placement of a consumer in a locked facility must be reevaluated by
the clinical team at regularly specified intervals, never less than each ninety
days. Review must be documented.
52.10.
Placement in a locked facility because of inappropriate behavior must result in
a plan to mitigate or modify such behavior as described in “Management of
continued inappropriate behavior”.
§64-11-53. Administrative due process.
Any person
aggrieved by an order or other action by the secretary based on this rule may
request in writing a hearing by the secretary in accordance with “Rules of
Procedure for Contested Case Hearings and Declaratory Rulings” 64CSR1, a copy
of which may be obtained from the Secretary of State.
NOTE: The purpose of this bill is to reauthorize, with amendment, as one rule, the legislative rules contained in title sixty-four, series eleven and series seventy-four of the code of state rules relating to licensure of behavioral health centers (64 CSR 11) and behavioral health consumer rights, (64 CSR 74).
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.