Bill Text: WV SB408 | 2018 | Regular Session | Comm Sub
Bill Title: Licensing of nursing homes and assisted living residences
Spectrum: Bipartisan Bill
Status: (Passed) 2018-04-23 - Chapter 196, Acts, Regular Session, 2018 [SB408 Detail]
Download: West_Virginia-2018-SB408-Comm_Sub.html
WEST virginia legislature
2018 regular session
Committee Substitute
for
Senate Bill 408
By Senators Takubo, Maroney, Stollings, and Plymale
[Originating in the Committee on Health and Human Resources; reported on February 7, 2018]
A BILL to repeal §16-5D-16 and §16-5D-17 of the Code of West Virginia, 1931, as amended; to amend and reenact §16-5C-3 of said code; and to amend and reenact §16-5D-2, §16-5D-3, §16-5D-4, §16-5D-5, §16-5D-6, §16-5D-7, §16-5D-8, §16-5D-9, §16-5D-10, §16-5D-11, §16-5D-12, §16-5D-13, and §16-5D-15 of said code, all relating to the licensure of nursing homes and assisted living residences; repealing duplicative sections of code; defining terms; requiring real-time online public information in lieu of annual report; clarifying rule requirements; allowing physical and electronic delivery methods for reports; and clarifying enforcement action and due process procedures.
Be it enacted by the Legislature of West Virginia:
ARTICLE 5C. NURSING HOMES.
§16-5C-3. Powers, duties
and rights of director secretary.
In the administration of
this article, the director secretary shall have the following
powers, duties and rights:
(a) To enforce rules and standards promulgated hereunder for nursing homes;
(b) To exercise as sole authority all powers relating to the issuance, suspension, and revocation of licenses of nursing homes;
(c) To enforce rules promulgated hereunder governing the qualification of applicants for nursing home licenses, including, but not limited to, educational requirements, financial requirements, personal, and ethical requirements;
(d) To receive and disburse federal funds and to take whatever action not contrary to law as may be proper and necessary to comply with the requirements and conditions for the receipt of such federal funds;
(e) To receive and disburse
for authorized purposes any moneys appropriated to the division of health
department by the Legislature;
(f) To receive and disburse
for purposes authorized by this article, any funds that may come to the division
of health department by gift, grant, donation, bequest, or devise,
according to the terms thereof, as well as funds derived from the division
of health's department’s operation, or otherwise;
(g) To make contracts, and
to execute all instruments necessary or convenient in carrying out the director's
secretary’s functions and duties; and all such contracts, agreements and
instruments shall will be executed by the director secretary;
(h) To appoint officers, agents, employees, and other personnel and fix their compensation;
(i) To offer and sponsor educational and training programs for nursing homes for clinical, administrative, management, and operational personnel;
(j) To undertake survey, research and planning projects, and programs relating to administration and operation of nursing homes and to the health, care, treatment and service in general of such homes;
(k) To assess civil penalties for violations of facility standards, in accordance with §16-5C-10 of this code;
(l) To inspect any nursing home and any records maintained therein that are necessary to determine compliance with licensure laws or Medicare or Medicaid certification, subject to the provisions of §16-5C-9 and §16-5C-10 of this code;
(m) To establish and implement procedures, including informal conferences, investigations and hearings, subject to applicable provisions of §29A-3-1 et seq. of this code, and to enforce compliance with the provisions of this article and with rules issued hereunder;
(n) To subpoena witnesses
and documents, administer oaths and affirmations, and to examine witnesses
under oath for the conduct of any investigation or hearing. Upon failure of a
person without lawful excuse to obey a subpoena to give testimony, and upon
reasonable notice to all persons affected thereby, the director secretary
may apply to the circuit court of the county in which the hearing is to be held
for an order compelling compliance;
(o) To make complaint or
cause proceedings to be instituted against any person or persons for the
violation of the provisions of this article or of rules issued hereunder. Such
action may be taken by the director secretary without the
sanction of the prosecuting attorney of the county in which proceedings are
instituted, if the officer fails or refuses to discharge his or her duty. The
circuit court of the county in which the conduct has occurred or, if emergency
circumstances require, the circuit court Circuit Court of Kanawha
County shall have jurisdiction in all civil enforcement actions brought under
this article and may order equitable relief without bond. In no such case may
the director secretary or any person acting under the director's
secretary’s direction be required to give security for costs;
(p) To delegate authority
to the director's secretary’s employees and agents to perform all
functions of the director secretary; except the making of
final decisions in adjudications
(q) To submit an annual
report make available to the Governor, the Legislature, and the
public sixty days before the Governor is required to submit an annual budget
report to the Legislature at all times online access through the Office
of Health Facility Licensure and Certification website the following
information. The report shall online information will
describe the licensing and investigatory activities of the department during
the year. and the nature and status of other activities of the department,
and may include comment on the acts, policies, practices or procedures of any
public or private agency that effect the rights, health or welfare of residents
of nursing homes The annual report shall online information will
include a list of all nursing homes in the state, whether such homes are
proprietary or nonproprietary; the name of the owner or owners administrator
or administrators; the total number of beds; the number of private and
semiprivate rooms; the costs per diem for private residents; the number of
full-time employees and their professions; recreational programs; services and
programs available as well as the costs thereof the legal name of the
facility; state identification number; health investigations information and
reports; life safety investigations information and reports; and whether or
not those nursing homes listed accept Medicare and Medicaid residents; The
report shall also contain the department's recommendations as to changes in law
or policy which it deems necessary or appropriate for the protection of the
rights, health or welfare of residents of nursing homes in the state and
(r) To establish a formal
process for licensed facilities to file complaints about the survey inspection
process or surveyors inspectors. and
(s) To establish a
committee to study and make a recommendation to the Legislature on a central
reporting system for allegations of abuse
ARTICLE 5D. ASSISTED LIVING RESIDENCES.
§16-5D-2. Definitions.
(a) As used in this article, unless a different meaning appears from the context:
(1) “Assisted living
residence” means any living facility, residence or place of accommodation,
however named, available for four or more residents, in this state which is
advertised, offered, maintained, or operated by the ownership or management,
whether for a consideration or not, for the express or implied purpose of
having personal assistance or supervision, or both, provided to any residents
therein who are dependent upon the services of others by reason of physical or
mental impairment and who may also require nursing care at a level that is not
greater than limited and intermittent nursing care: Provided, That the
care or treatment in a household, whether for compensation or not, of any
person related by blood or marriage, within the degree of consanguinity of
second cousin to the head of the household, or his or her spouse, may not be
deemed to constitute an assisted living residence within the meaning of this
article. Nothing contained in this article applies to hospitals, as defined
under §16-5B-1 of this code; or state
institutions, as defined under §25-1-3 or §27-1-6 of this code; or personal residential care homes
operated by the federal government or the state; or institutions operated for
the treatment and care of alcoholic patients; or offices of physicians; or
hotels, boarding homes, or other similar places that furnish to their guests
only room and board; or to homes or asylums operated by fraternal orders
pursuant to §35-3-1 et seq. of
this code;
(2) “Deficiency” means a statement of the rule and the fact that compliance has not been established and the reasons therefor;
(3) “Department” means the state Department of Health and Human Resources;
(4) “Director” means the director of the Office of Health Facility Licensure and Certification within the Office of the Inspector General.
(4) (5) “Division” means the Bureau for Public
Health Office of Health Facility Licensure and Certification within the
Office of the Inspector General of the state Department of Health and Human
Resources;
(5) (6) “Limited and intermittent nursing care”
means direct hands-on nursing care of an individual who needs no more than two
hours of nursing care per day for a period of time no longer than 90
consecutive days per episode: Provided, That such time limitations shall
not apply to an individual who, after having established a residence in an
assisted living residence, subsequently qualifies for and receives services
coordinated by a licensed hospice and such time limitations shall not apply to
home health services provided by a Medicare-certified home health agency.
Limited and intermittent nursing care may only be provided by or under the
supervision of a registered professional nurse and in accordance with rules proposed
by the secretary for legislative approval in accordance with the provisions of
§29A-3-1 et seq.;
(6) (7) “Nursing care” means those procedures
commonly employed in providing for the physical, emotional, and
rehabilitational needs of the ill or otherwise incapacitated which require
technical skills and knowledge beyond that which the untrained person
possesses, including, but not limited to, such procedures as: Irrigations,
catheterization, special procedures contributing to rehabilitation and administration
of medication by any method which involves a level of complexity and skill in
administration not possessed by the untrained person;
(7) (8) “Person” means an individual and every
form of organization, whether incorporated or unincorporated, including any
partnership, corporation, trust, association, or political subdivision of the
state;
(8) (9) “Personal assistance” means personal services,
including, but not limited to, the following: Help in walking, bathing,
dressing, feeding, or getting in or out of bed, or supervision required because
of the age or mental impairment of the resident;
(9) (10) “Resident” means an individual living in
an assisted living residence for the purpose of receiving personal assistance
or limited and intermittent nursing services;
(10) (11) “Secretary” means the secretary of the
state Department of Health and Human Resources or his or her designee; and
(11) (12)
“Substantial compliance” means a level of compliance with the rules such that
identified deficiencies pose no greater risk to resident health or safety than
the potential for causing minimal harm.
(b) The secretary may define in rules any term used herein which is not expressly defined.
§16-5D-3. Powers, duties, and rights of secretary.
In the administration of this article, the secretary has the following powers, duties, and rights:
(a) To enforce rules and standards for assisted living residences which are adopted, promulgated, amended, or modified by the secretary;
(b) To exercise as sole authority all powers relating to the issuance, suspension, and revocation of licenses of assisted living residences;
(c) To enforce rules adopted, promulgated, amended, or modified by the secretary governing the qualification of applicants for assisted living residences, including, but not limited to, educational requirements, financial requirements, personal, and ethical requirements;
(d) To receive and disburse federal funds and to take whatever action not contrary to law as may be proper and necessary to comply with the requirements and conditions for the receipt of federal funds;
(e) To receive and disburse for authorized purposes any moneys appropriated for the division by the Legislature;
(f) To receive and disburse for purposes authorized by this article, any funds that may come to the division by gift, grant, donation, bequest, or devise, according to the terms thereof, as well as funds derived from the division's operation or otherwise;
(g) To make contracts and
to execute all instruments necessary or convenient in carrying out the
secretary’s functions and duties; and all such contracts, agreements, and
instruments shall will be executed by the secretary;
(h) To appoint officers, agents, employees, and other personnel and fix their compensation;
(i) To offer and sponsor educational and training programs for assisted living residences’ administrative, management, and operational personnel;
(j) To undertake survey, research and planning projects, and programs relating to administration and operation of assisted living residences and to the health, care, treatment, and service in general of residents of assisted living residences;
(k) To assess civil penalties for violations of assisted living residence standards in accordance with §16-5D-10 of this code;
(l) To inspect any assisted living residence and any records maintained therein subject to the provisions of §16-5D-9 and §16-5D-10 of this code;
(m) To establish and implement procedures, including informal conferences, investigations and hearings, subject to applicable provisions of §29A-3-1 et seq. of this code, and to enforce compliance with the provisions of this article and with rules issued hereunder by the secretary;
(n) To subpoena witnesses
and documents, administer oaths and affirmations, and to examine witnesses
under oath for the conduct of any investigation or hearing. Upon failure of a
person without lawful excuse to obey a subpoena to give testimony, and upon
reasonable notice to all persons affected thereby, the secretary may apply to
the circuit court of the county in which the hearing is to be held or to the circuit
court Circuit Court of Kanawha County for an order compelling
compliance;
(o) To make complaint or
cause proceedings to be instituted against any person for the violation of the
provisions of this article or of rules issued hereunder by the secretary. Such
action may be taken by the secretary
without the sanction of the prosecuting attorney of the county in which
proceedings are instituted if the prosecuting attorney fails or refuses to
discharge his or her duty. The circuit court Circuit Court of
Kanawha County or the circuit court of the county in which the conduct has
occurred shall have jurisdiction in all civil enforcement actions brought under
this article and may order equitable relief without bond. In no such case may
the secretary or any person acting under the secretary’s direction be required
to give security for costs;
(p) To delegate authority to the secretary’s employees and agents to perform all functions of the secretary except the making of final decisions in adjudications; and
(q) To submit an annual
report make available to the Governor, the Legislature and the
public at all times online access through the Office of Health Facility
Licensure and Certification website the following information. The report
shall online information will describe the assisted living residence
licensing and investigatory activities of the division. during the year and
the nature and status of other activities of the division and may include
comment on the acts, policies, practices or procedures of any public or private
agency that affect the rights, health or welfare of residents of assisted
living residences The annual report shall online information will
include a list of all assisted living residences in the state and such of the
following information as the secretary determines to apply: Whether the
assisted living residences are proprietary or nonproprietary; the
classification of each assisted living residence; the name of the owner or
owners administrator; the total number of beds; the number of
private and semiprivate rooms; the costs per diem for private residents; the
number of full-time employees and their professions; recreational programs;
services and programs available as well as the costs thereof license
type; license number; license expiration date; health investigation information
and reports; life safety information and reports; and whether or not those
assisted living residences listed accept Medicare and Medicaid residents. The
report shall also contain the division's recommendations as to changes in law
or policy which it deems necessary or appropriate for the protection of the
rights, health or welfare of residents of assisted living residences in the
state
§16-5D-4. Administrative and inspection staff.
The secretary may, as he or
she determines necessary, employ administrative employees, inspectors, or other
persons as may be necessary to properly carry out the provisions of this
article. All employees of the division shall will be members of
the state civil service system. Inspectors and other employees as may be duly
designated by the secretary shall will act as the secretary’s
representatives and, under the direction of the secretary, shall will
enforce the provisions of this article and all duly promulgated rules of the
secretary and, in the discharge of official duties, shall will
have the right of entry into any place maintained as an assisted living
residence at any time.
§16-5D-5. Rules; minimum standards for assisted living residences.
(a) The secretary shall
will propose rules for legislative approval in accordance with the provisions
of §29A-3-1 et seq. of this code to carry out the purposes and
intent of this article and to enable the secretary to exercise the powers and
perform the duties conferred upon the secretary by this article.
(b) The secretary shall
will propose rules establishing minimum standards of operation of
assisted living residences, including, but not limited to, the following:
(1) Administrative policies, including:
(A) An affirmative
statement of the right of access to assisted living residences by members of
recognized community organizations and community legal services programs whose
purposes include rendering assistance without charge to residents, consistent
with the right of residents to privacy; and
(B) A statement of the rights and responsibilities of residents;
(C) The process to be followed by applicants seeking a license;
(D) The clinical, medical, resident, and business records to be kept by the assisted living residence;
(E) The procedures for inspections and for the review of utilization and quality of resident care; and
(F) The procedures for informal dispute resolution and administrative due process and when such remedies are available.
(2) Minimum numbers and qualifications of personnel, including management, medical and nursing, aides, orderlies, and support personnel, according to the size and classification of the assisted living residence;
(3) Safety requirements;
(4) Sanitation requirements;
(5) Protective and personal services to be provided;
(6) Dietary services to be provided;
(7) Maintenance of health records;
(8) Social and recreational activities to be made available;
(9) Physical facilities;
(10) Requirements related to provision of limited and intermittent nursing;
(11) Visitation privileges governing access to a resident by immediate family or other relatives of the resident and by other persons who are visiting with the consent of the resident; and
(12) Such other categories as the secretary determines to be appropriate to ensure resident’s health, safety, and welfare.
(c) The secretary shall
will include in rules detailed standards for each of the categories of
standards established pursuant to §16-5D-5(b) and §16-5D-5(d) of this
section and shall will classify such standards as follows:
(1) Class I standards are standards the violation of which, as the secretary determines, would present either an imminent danger to the health, safety, or welfare of any resident or a substantial probability that death or serious physical harm would result;
(2) Class II standards are standards which the secretary determines have a direct or immediate relationship to the health, safety, or welfare of any resident, but which do not create imminent danger;
(3) Class III standards are standards which the secretary determines have an indirect or a potential impact on the health, safety, or welfare of any resident.
(d) An assisted living residence shall attain substantial compliance with standards established pursuant to this section and such other requirements for a license as may be established by rule under this article.
§16-5D-6. License required; application; fees; duration; renewal.
(a) There shall be one
assisted living residence license for each assisted living residence. Subject
to the provisions of section seventeen of this article No person may
establish, operate, maintain, offer, or advertise an assisted living residence
within this state unless and until he or she obtains a valid license therefor
as provided in this article, which license remains unsuspended, unrevoked, and
unexpired. No public official or employee may place any person in, or recommend
that any person be placed in, or directly or indirectly cause any person to be
placed in any assisted living residence, as defined in §16-5D-2 of
this code, which is being operated without a valid license from the
secretary. The licensee shall be responsible for, and shall have complete
control of, the operation and premises of the assisted living residence and the
personal assistance and supervision provided to the residents: Provided,
That the secretary may review any leases or any contracts, subcontracts,
agreements, or arrangements for the provision of on-site services to the
residents of an assisted living residence to ensure the proper care, safety,
and welfare of current or potential residents. Nothing in this article shall be
construed to prevent or prohibit the ability of a resident of an assisted
living residence to contract or arrange for, and to receive, privately paid
nursing care or personal assistance in addition to those services provided by
the licensee, subject to the consent and cooperation of the licensee and
consistent with the duties and responsibilities imposed by this section.
(b) Nothing in this article shall be construed to require the licensing of landlords or property owners who are not involved in the provision of supervision, personal assistance, limited and intermittent nursing care, or other on-site professional services for the residents of an assisted living residence or in the advertising, recruitment of residents, transportation of residents, or other substantial and ongoing services for the operation or maintenance of the assisted living residence.
(c) The procedure for obtaining a license shall be as follows:
(1) The applicant shall submit an application to the
secretary on a form to be prescribed by the secretary, containing such
information as may be necessary to show that the applicant is in compliance
with the standards for assisted living residences as established by this
article and the rules lawfully promulgated by the secretary hereunder. The
application and any exhibits thereto shall provide the following information:
(A) The name and address of the applicant;
(B) The name, address, and principal occupation:
(i) Of each person who, as a stockholder or otherwise, has a proprietary interest of 10 percent or more in the applicant;
(ii) Of each officer and director of a corporate applicant;
(iii) Of each trustee and beneficiary of an applicant which is a trust; and
(iv) Where a corporation has a proprietary interest of 25 percent or more in an applicant, the name, address and principal occupation of each officer and director of the corporation;
(C) The name and address of the owner of the premises of the assisted living residence or proposed assisted living residence, if he or she is a different person from the applicant, and in such case, the name and address:
(i) Of each person who, as a stockholder or otherwise, has a proprietary interest of 10 percent or more in the owner;
(ii) Of each officer and director of a corporate applicant;
(iii) Of each trustee and beneficiary of the owner if it is a trust; and
(iv) Where a corporation has a proprietary interest of 25 percent or more in the owner, the name and address, of each officer and director of the corporation;
(D) Where the applicant is the lessee or the assignee of the assisted living residence or the premises of the proposed assisted living residence, a signed copy of the lease and any assignment thereof;
(E) The name and address of the assisted living residence or the premises of the proposed assisted living residence;
(F) The proposed bed quota of the assisted living residence and the proposed bed quota of each unit thereof;
(G) An organizational plan for the assisted living residence indicating the number of persons employed or to be employed, the positions and duties of all employees;
(H) The name and address of the individual who is to serve as administrator;
(I) Such evidence of compliance with applicable laws and rules governing zoning, buildings, safety, fire prevention, and sanitation as the secretary may require; and
(J) Such additional information as the secretary may require.
(d) Upon receipt and review
of an application for license made pursuant to §16-5D-6(a) of this section
code and inspection of the applicant assisted living residence pursuant
to §16-5D-9 and §16-5D-10 of this code, the secretary shall
will issue a license if he or she finds:
(1) That an individual applicant, and every partner, trustee, officer, secretary and controlling person of an applicant which is not an individual, is a person responsible and suitable to operate or to direct or participate in the operation of an assisted living residence by virtue of financial capacity, appropriate business or professional experience, a record of compliance with lawful orders of the department, if any, and lack of revocation of a license during the previous five years;
(2) That the assisted living residence is under the supervision of an administrator who is qualified by training and experience; or
(3) That the assisted living residence is in substantial compliance with standards established pursuant to §16-5D-5 of this code and such other requirements for a license as the secretary may establish by rule under this article.
(e) The secretary may deny an initial or renewal license if the information provided in an application or report is known by the applicant to be false or the applicant fails to report required information or for any other reason permitted by law or rules promulgated pursuant to this article.
(f) Any license granted by
the secretary shall will state the maximum bed capacity for which
it is granted, the date the license was issued and the expiration date.
Licenses shall will be issued for a period not to exceed one year
for assisted living residences: Provided, That any such license in
effect for which timely application for renewal, together with payment of the
proper fee has been made to the state division of health department
in conformance with the provisions of this article and the rules issued
thereunder and prior to the expiration date of the license, shall continue in
effect until: (1) One year following the expiration date of the license; or (2)
the date of the revocation or suspension of the license pursuant to the
provisions of this article; or (3) the date of issuance of a new license,
whichever date first occurs. Each license shall will be issued
only for the premises and persons named in the application and is not
transferable or assignable: Provided, however, That in the case of the
transfer of ownership of an assisted living residence with an unexpired
license, the application of the new owner for a license shall have the effect
of a license for a period of three months when filed with the secretary. Every
license shall be posted in a conspicuous place in the assisted living residence
for which it is issued so as to be accessible to and in plain view of all
residents and visitors of the assisted living residence.
(g) An original license shall be renewable, conditioned upon the licensee filing timely application for the extension of the term of the license accompanied by the fee and contingent upon evidence of compliance with the provisions of this article and rules promulgated by the secretary hereunder; the application shall be accompanied by:
(1) The information
required in paragraphs (A), (B) and (C), subdivision (1) of this subsection.
§16-5D-6 (c) (A), (B), and (C).
(2) A balance sheet of the assisted living residence as of the end of its fiscal year, setting forth assets and liabilities at such date, including all capital, surplus, reserve, depreciation and similar accounts;
(3) A statement of operations of the assisted living residence as of the end of its fiscal year, setting forth all revenues, expenses, taxes, extraordinary items, and other credits or charges; and
(4) A statement of any changes in the name, address, management, or ownership information on file with the secretary.
(h) In the case of an application for a renewal license, if all requirements of §16-5D-5 and §16-5D-6 of this code are not met, the secretary may in his or her discretion issue a provisional license, provided that care given in the assisted living residence is adequate for resident needs and the assisted living residence has demonstrated improvement and evidences potential for substantial compliance within the term of the license: Provided, That a provisional renewal may not be issued for a period greater than one year, may not be renewed, and may not be issued to any assisted living residence with uncorrected violations of any Class I standard, as defined in §16-5D-5(c) of this code.
(i) A nonrefundable
application fee in the amount of $65.00 for an original assisted living
residence license shall be paid at the time application is made for the
license. An average cost of all direct costs for the initial licensure for the
preceding 10 facilities based on the size of the facility's licensed bed
capacity shall be borne by the applicant and shall be received by the secretary
prior to the issuance of an initial or amended license. The license fee for
renewal of a license shall be at the rate of $6.00 per bed per year for
assisted living residences except the annual rate per bed may be assessed for
licenses issued for less than one year. The secretary may annually adjust the
licensure fees for inflation based upon the consumer price index. The bed
capacity for the holder of each license shall will be determined
by the secretary. All license fees shall be due and payable to the secretary
annually, and in the manner set forth in the rules promulgated by the
secretary. The fee and application shall be submitted to the secretary who shall
will retain both the application and fee pending final action on the
application. All fees received by the secretary under the provisions of this
article shall will be deposited in accordance with §16-1-13 of
this code.
§16-5D-7. Cost disclosure; surety for residents' funds.
(a) Each assisted living residence shall disclose in writing to all prospective residents a complete and accurate list of all costs which may be incurred by them. Residents are not liable for any cost not so disclosed.
(b) If the assisted living
residence handles any money for residents within the assisted living residence,
the licensee or his or her authorized representative shall give a bond in an
amount consistent with this subsection and with such surety as the secretary shall
will approve. The bond shall be upon condition that the licensee shall
hold separately and in trust all residents' funds deposited with the licensee,
shall administer the funds on behalf of the resident in the manner directed by
the depositor, shall render a true and complete account to the depositor and
the secretary when requested, and at least quarterly to the resident, and upon
termination of the deposit, shall account for all funds received, expended, and
held on hand. The licensee shall file a bond in a sum to be fixed by the
secretary based upon the magnitude of the operations of the applicant, but
which sum may not be less than $2,500.00.
(c) Every person injured as a result of any improper or unlawful handling of the money of a resident of an assisted living residence may bring an action in a proper court on the bond required to be posted by the licensee pursuant to this subsection for the amount of damage suffered as a result thereof to the extent covered by the bond. Whenever the secretary determines that the amount of any bond which is filed pursuant to this subsection is insufficient to adequately protect the money of residents which is being handled, or whenever the amount of any bond is impaired by any recovery against the bond, the secretary may require the licensee to file an additional bond in such amount as necessary to adequately protect the money of residents being handled.
(d) The provisions of §16-5D-7
(b) of this section code do not apply if the licensee handles
less than $25.00 per resident and less than $500.00 for all residents in any month.
§16-5D-8. Investigation of complaints.
(a) The secretary shall
will establish, by rule, procedures for prompt investigation of all
complaints of alleged violations by assisted living residences of applicable
requirements of state law or rules, except for such complaints that the
secretary determines are willfully intended to harass a licensee or are without
any reasonable basis. Such procedures shall will include
provisions for ensuring the confidentiality of the complainant and of any other
person so named in the complaint and for promptly informing the complainant and
the assisted living residence involved of the results of the investigation.
(b) If, after its
investigation, the secretary determines that the complaint has merit, the
secretary shall will take appropriate disciplinary action and shall
will advise any injured party of the possibility of a civil remedy under
this article.
(c) No assisted living residence may discharge or in any manner discriminate against any resident or employee for the reason that the resident or employee has filed a complaint or participated in any proceeding specified in this article. Violation of this prohibition by any assisted living residence constitutes grounds for the suspension or revocation of the license of the assisted living residence as provided in §16-5D-11 and §16-5D-12 of this code. Any type of discriminatory treatment of a resident or employee by whom, or upon whose behalf, a complaint has been submitted to the secretary, or any proceeding instituted under this article, within 120 days of the filing of the complaint or the institution of the action, shall raise a rebuttable presumption that the action was taken by the assisted living residence in retaliation for the complaint or action.
§16-5D-9. Inspections.
(a) The secretary and any
duly designated employee or agent thereof shall will have the
right to enter upon and into the premises of any assisted living residence at
any time for which a license has been issued, for which an application for
license has been filed with the secretary, or which the secretary has reason to
believe is being operated or maintained as an assisted living residence without
a license. If entry is refused by the owner or person in charge of the assisted
living residence, the secretary shall will apply to the circuit
court of the county in which the assisted living residence is located or the
Circuit Court of Kanawha County for an order authorizing inspection and the
court shall issue an appropriate order if it finds good cause administrative
inspection warrant.
(b) The secretary, by the
secretary’s authorized employees or agents, shall will conduct at
least one inspection prior to issuance of a license pursuant to §16-5D-6 of
this code and shall will conduct periodic unannounced
inspections thereafter to determine compliance by the assisted living residence
with applicable statutes and rules promulgated thereunder. All assisted living
residences shall comply with rules of the s State Fire
Commission. The State Fire Marshal, by his or her employees or authorized agents,
shall make all fire, safety, and like inspections. The secretary may provide
for such other inspections as the secretary may deem necessary to carry out the
intent and purpose of this article. If after investigating a complaint the
secretary determines that the complaint is substantiated and that an immediate
and serious threat to a resident's health or safety exists, the secretary may
invoke any remedies available pursuant to §16-5D-11 and §16-5D-12 of this
code. Any assisted living residence aggrieved by a determination or
assessment made pursuant to this section shall have the right to an
administrative appeal as set forth in §16-5D-12 of this code.
§16-5D-10. Reports of inspections; plans of correction; assessment of penalties and use of funds derived therefrom; hearings.
(a) Reports of all
inspections made pursuant to §16-5D-9 of this code shall will
be in writing and filed with the secretary and shall will
list all deficiencies in the assisted living residence's compliance with the
provisions of this article and the rules adopted by the secretary hereunder.
The secretary shall director will send a copy of the report to
the assisted living residence by certified mail, return receipt requested
physical or electronic method with verifiable delivery, and shall
will specify a time within which the assisted living residence shall
submit a plan for correction of deficiencies, which plan shall will
be approved, rejected, or modified by the secretary. The surveyors shall
inspectors will allow audio taping of the exit conference for licensure
inspections with all costs directly associated with the taping to be paid by
the assisted living residence, provided that an original tape is provided to surveyors
inspectors at the end of taping.
(b) Upon an assisted living residence's failure to submit a plan of correction which is approved by the secretary, or to correct any deficiency within the time specified in an approved plan of correction, the secretary may assess civil penalties as hereinafter provided or may initiate any other legal or disciplinary action as provided by this article.
(c) Nothing in this section may be construed to prohibit the secretary from enforcing a rule, administratively or in court, without first affording formal opportunity to make correction under this section, where, in the opinion of the secretary, the violation of the rule jeopardizes the health or safety of residents or where the violation of the rule is the second or subsequent violation occurring during a period of 12 full months.
(d) Civil penalties
assessed against assisted living residences shall will be
classified according to the nature of the violation as defined in §16-5D-5(c) of
this code and rules promulgated thereunder by the secretary, as follows:
For each violation of a Class I standard, a civil penalty of not less than $50.00
nor more than $500.00 shall will be imposed; for each
violation of a Class II standard, a civil penalty of not less than $25.00
nor more than $50.00 shall will be imposed; for each
violation of a Class III standard, a civil penalty of not less than $10.00
nor more than $25.00 shall will be imposed. Each day a
violation continues, after the date of citation, shall constitute a separate
violation. The date of citation is the date the facility receives the written
statement of deficiencies.
(e) The secretary shall
will assess a civil penalty not to exceed $2,000.00 against any
individual who notifies, or causes to be notified, an assisted living residence
of the time or date on which an inspection is scheduled to be conducted under
this article.
(f) If the secretary
assesses a penalty under this section, the secretary shall will
cause delivery of notice of the penalty by personal service or by certified
mail. The notice shall will state the amount of the penalty, the
action or circumstance for which the penalty is assessed, the requirement that
the action or circumstance violates, and the basis upon which the secretary
assessed the penalty and selected the amount of the penalty.
(g) The secretary shall
will, in a civil judicial proceeding, recover any unpaid assessment
which has not been contested under §16-5D-12 of this code within 30 days
of receipt of notice of the assessment or which has been affirmed under the
provisions of that section and not appealed within 30 days of receipt of the secretary’s
Board of Review’s final order or which has been affirmed on judicial
review, as provided in §16-5D-13 of this code. All money collected by
assessments of civil penalties or interest shall will be paid
into a special resident benefit account and shall will be applied
by the secretary only for the protection of the health or property of residents
of assisted living residences operated within the state that the secretary
finds to be deficient, including payment for the costs of relocation of
residents to other facilities, operation of an assisted living residence
pending correction of deficiencies, or closure and reimbursement of residents
for personal funds lost.
(h) The opportunity for a hearing on an action taken under this section shall be as provided in §16-5D-12 of this code. In addition to any other rights of appeal conferred upon an assisted living residence pursuant to this section, an assisted living residence shall have the right to request a hearing and seek judicial review pursuant to §16-5D-12 and §16-5D-13 of this code to contest the citing by the secretary of a deficiency on an inspection report, irrespective of whether the deficiency results in the imposition of a civil penalty.
(a) The secretary shall
will, by order, impose a ban on the admission of residents or reduce the
bed quota of the assisted living residence, or any combination thereof, where
he or she finds upon inspection of the assisted living residence that the
licensee is not providing adequate care under the assisted living residence's
existing bed quota and that reduction in quota or imposition of a ban on
admissions, or any combination thereof, would place the licensee in a position
to render adequate care. Any notice to a licensee of reduction in quota or ban
on new admissions shall will include the terms of the order, the
reasons therefor, and the date set for compliance.
(b) The secretary may suspend or revoke a license issued under this article or take other action as set forth in this section if he or she finds upon inspection that there has been a substantial failure to comply with the provisions of this article or the standards or rules promulgated pursuant hereto.
(c) Whenever a license
is limited, suspended or revoked pursuant to this section, the secretary shall
file an administrative complaint stating facts constituting a ground or grounds
for the limitation, suspension or revocation. Upon the filing of the
administrative complaint, the secretary shall notify the licensee in writing of
the filing of the administrative complaint, enclosing a copy of the complaint,
and shall advise the licensee of the availability of a hearing pursuant to
section twelve of this article. The notice and copy of the administrative
complaint shall be served on the licensee by certified mail, return receipt
requested
(d) (c) The
suspension, expiration, forfeiture or cancellation by operation of law or order
of the secretary of a license issued by the secretary or the withdrawal of an
application for a license after it has been filed with the secretary, may not
deprive the secretary of the secretary’s authority to institute or continue an
disciplinary proceeding enforcement action or a proceeding for
the denial of a license application against the licensee or applicant upon any
ground provided by law or to enter an order denying the license
application or suspending or revoking revoke the license
or otherwise taking disciplinary take enforcement action on any
such ground.
(e) (d) In addition to other remedies provided in
this article, upon petition from the secretary, the circuit court of the county
in which the conduct has occurred or is occurring, or the Circuit Court of
Kanawha County may determine that an assisted living residence's deficiencies
under this article constitute an emergency immediately jeopardizing the health,
safety, welfare, or rights of its residents and issue an order to:
(1) Close the assisted living residence;
(2) Transfer residents in the assisted living residence to other facilities; or
(3) Appoint temporary management to oversee the operation of the assisted living residence and to assure the health, safety, welfare, and rights of the assisted living residence's residents where there is a need for temporary management while:
(A) There is an orderly closure of the assisted living residence; or
(B) Improvements are made in
order to bring the assisted living residence into compliance with all the
applicable requirements of this article.
(f) (e) If the secretary petitions a circuit court
for the closure of an assisted living residence, the transfer of residents, or
the appointment of a temporary management, the circuit court shall hold a
hearing no later than seven days thereafter, at which time the secretary and
the licensee or operator of the assisted living residence may participate and
present evidence.
(g) (f) A circuit court may divest the licensee or
operator of possession and control of an assisted living residence in favor of
temporary management. The temporary management shall be responsible to the
court and shall have such powers and duties as the court may grant to direct
all acts necessary or appropriate to conserve the property and promote the
health, safety, welfare, and rights of the residents of the assisted living
residence, including, but not limited to, the replacement of management and
staff, the hiring of consultants, the making of any necessary expenditures to
close the assisted living residence, or to repair or improve the assisted
living residence so as to return it to compliance with applicable requirements
and the power to receive, conserve, and expend funds, including payments on
behalf of the licensee or operator of the assisted living residence. Priority
shall be given to expenditures for current direct resident care or the transfer
of residents.
(h) (g)The person charged with temporary
management:
(i) (1) Shall be
an officer of the court;
(ii) (2) s Shall
be paid by the licensee;
(iii) (3) I Is
not liable for conditions at the assisted living residence which existed or
originated prior to his or her appointment; and
(iv) (4) Is not
personally liable, except for his or her own gross negligence and intentional
acts which result in injuries to persons or damage to property at the assisted
living residence during his or her temporary management.
(i) (h) No
person may impede the operation of temporary management. There shall be an
automatic stay for a 90-day period subsequent to the establishment of temporary
management of any action that would interfere with the functioning of the
assisted living residence, including, but not limited to, cancellation of
insurance policies, termination of utility services, attachments to working
capital accounts, foreclosures, evictions, and repossessions of equipment used
in the assisted living residence.
(j) (i) A temporary management established for the
purpose of making improvements in order to bring the assisted living
residence into compliance with applicable requirements may not be terminated
until the court has determined that the assisted living residence has the management
capability to ensure continued compliance with all applicable requirements;
except if the court has not made such determination within six months of the
establishment of the temporary management, the temporary management terminates
by operation of law at that time, and the assisted living residence shall be
closed. After the termination of the temporary management, the person who was
responsible for the temporary management shall make an accounting to the court
and after deducting from receipts the costs of the temporary management,
expenditures, and civil penalties and interest no longer subject to appeal, in
that order, any excess shall be paid to the licensee or operator of the
assisted living residence.
(k) (j) The assessments for penalties and for
costs of actions taken under this article shall have interest assessed at five
percent per annum year beginning 30 days after receipt of notice
of the assessment or 30 days after receipt of the secretary’s Board
of Review’s final order following a hearing, whichever is later. All
assessments against an assisted living residence that are unpaid shall be added
to the assisted living residence's licensure fee and may be filed as a lien
against the property of the licensee or operator of the assisted living
residence. Funds received from assessments shall be deposited as funds received
as provided in §16-5D-10 of this code.
(l) The secretary shall
have the power to promulgate emergency rules that expand the power of the
secretary in excess of that provided in this article to the extent required to
comply with federal requirements, but any such rules shall expand the power of
the secretary to the minimum extent required by federal requirements. The rules
are subject to the provisions of article three, chapter twenty-nine-a of this
code
(m) (k) The
opportunity for a hearing on an action by the secretary taken under this
section shall be as provided in §16-5D-12 of this code.
§16-5D-12. Administrative
appeals for civil assessments License denial;
limitation, suspension or revocation.
(a) Any licensee or
applicant aggrieved by an order issued pursuant to sections five, six, ten or
eleven of this article may request a formal or informal hearing with the
secretary or program manager in order to contest the order as contrary to law
or unwarranted by the facts or both. If the contested matter is not resolved at
the informal hearing, the licensee or applicant may request a formal hearing
before the secretary. An informal hearing is not a prerequisite for requesting
a formal hearing The secretary shall issue an order denying, limiting,
suspending, or revoking a license issued pursuant to this article if the
provisions of this article or of the rules promulgated pursuant to this article
are violated. The secretary may issue an order revoking a program’s license and
prohibit all licensed disciplines associated with the assisted living residence
from practicing at the assisted living residence based upon an annual,
periodic, complaint, verification, or other inspection and evaluation.
(b) Informal hearings
shall be held within twenty business days of the secretary’s receipt of timely
request for appeal unless the licensee or applicant consents to a postponement
or continuance. In no event may the informal hearing occur more than thirty
business days after the secretary receives a timely request for appeal. Neither
the licensee or applicant nor the secretary may be represented by an attorney
at the informal hearing. Within ten business days of the conclusion of the
informal hearing, the secretary, program manager or designee shall issue an
informal hearing order, including the basis for the decision. If the order is
not favorable to the licensee or applicant, the licensee or applicant may
request an appeal and a formal hearing. The secretary shall notify the
administrative hearing examiner of the request for appeal within five business
days of receiving the request for an appeal and a formal hearing Before
any order is issued by the secretary denying, limiting, suspending, or revoking
a license, written notice will be given to the licensee, stating the grounds
for such denial, limitation, suspension, or revocation.
(c) If the applicant or
licensee requests a formal hearing without a prior informal hearing or if an applicant
or licensee appeals the order issued as a result of the informal hearing, the
secretary shall proceed in accordance with the department's rules of procedure
for contested case hearings and declaratory rulings and the pertinent
provisions of article five, chapter twenty-nine-a of this code An
applicant or licensee has 10 working days after receipt of the secretary’s
order denying, limiting, suspending, or revoking a license to request a formal
hearing contesting the denial, limitation, suspension, or revocation under this
article. If a formal hearing is requested, the applicant or licensee and the
secretary shall proceed in accordance with the provisions of §29A-5-1 et
seq. of this code.
(d) Following a formal
hearing, the secretary shall make and enter a written order either dismissing
the complaint or taking other action as is authorized in this article. The
written order of the secretary shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five, chapter
twenty-nine-a of this code and a copy of the order and accompanying findings
and conclusions shall be served upon the licensee and his or her attorney of
record, if any, by certified mail, return receipt requested. If the secretary
suspends an assisted living residence's license, the order shall also specify
the conditions giving rise to the suspension to be corrected by the licensee
during the period of suspension in order to entitle the licensee to
reinstatement of the license. If the secretary revokes a license, the secretary
may stay the effective date of revocation by not more than ninety days upon a
showing that the delay is necessary to assure appropriate placement of
residents. The order of the secretary shall be final unless vacated or modified
upon judicial review of the order in accordance with the provisions of section
thirteen of this article If a license is denied or revoked as herein
provided, a new application for license will be considered by the secretary if,
when, and after the conditions upon which the denial was based have been
corrected and evidence of this fact has been furnished. A new license will then
be granted after proper inspection, if applicable, has been made and all
provisions of this article and rules promulgated pursuant to this article have
been satisfied.
(e) In addition to all
other powers granted by this chapter, the secretary may hold the case under
advisement and make a recommendation as to requirements to be met by the
licensee in order to avoid either suspension or revocation. In such a case, the
secretary shall enter an order accordingly and so notify the licensee and his
or her attorney of record, if any, by certified mail, return receipt requested.
If the licensee meets the requirements of the order, the secretary shall enter
an order showing satisfactory compliance and dismissing the complaint and shall
so notify the licensee and the licensee's attorney of record, if any, by
certified mail, return receipt requested
Any applicant or licensee who is
dissatisfied with the decision as a result of the formal hearing provided in
this section may, within 30 days after receiving notice of the decision,
petition the Circuit Court of Kanawha County, in term or in vacation, for
judicial review of the decision.
(f) If the license of an assisted living residence is denied, limited, suspended, or revoked, the administrator, any owner of the assisted living residence, or owner or lessor of the assisted living residence property shall cease to operate the facility as an assisted living residence as of the effective date of the denial, limitation, suspension, or revocation. The owner or lessor of the assisted living residence property is responsible for removing all signs and symbols identifying the premises as an assisted living residence within 30 days. Any administrative appeal of such denial, limitation, suspension, or revocation shall not stay the denial, limitation, suspension, or revocation.
(g) Upon the effective date of the denial, limitation, suspension, or revocation, the administrator of the assisted living residence shall advise the secretary and the Board of Pharmacy of the disposition of all medications located on the premises. The disposition is subject to the supervision and approval of the secretary. Medications that are purchased or held by an assisted living residence that is not licensed may be deemed adulterated.
(h) If the license of an assisted living residence is suspended or revoked, any person named in the licensing documents of the assisted living residence, including persons owning or operating the assisted living residence, may not, as an individual or as part of a group, apply to operate another assisted living residence for up to five years after the date of suspension or revocation.
(i) The period of suspension for the license of an assisted living residence will be prescribed by the secretary, but may not exceed one year.
§16-5D-13. Judicial review.
(a) Any licensee
adversely affected by an order of the secretary rendered after a hearing held
in accordance with the provisions of section twelve of this article is entitled
to judicial review thereof. All of the pertinent provisions of section four,
article five, chapter twenty-nine-a of this code shall apply to and govern with
like effect as if the provisions of said section were set forth in extenso in
this section Any applicant or licensee or the secretary who is adversely
affected by the decision as a result of the formal hearing provided for in
§16-5D-12 of this code may, within 30 days after receiving notice of the
decision, petition the Circuit Court of Kanawha County, in term or in vacation,
for judicial review of the decision.
(b) The court may affirm, modify, or reverse the decision of the Board of Review and either the applicant, licensee, or the secretary may appeal from the court’s decision to the Supreme Court of Appeals.
(b) (c) The
judgment of the circuit court shall be final unless reversed, vacated, or
modified on appeal to the Supreme Court of Appeals in accordance with the
provisions of §29A-6-1 et seq. of this code.
§16-5D-15. Unlawful acts; penalties; injunctions; private right of action.
(a) Whoever advertises,
announces, establishes or maintains or is engaged in establishing or
maintaining an assisted living residence without a license granted under §16-5D-6 of this code, or who
prevents, interferes with or impedes in any way the lawful enforcement of this
article shall be guilty of a misdemeanor and, upon conviction thereof, shall be
punished for the first offense by a fine of not more than $100.00 or by
imprisonment in jail for a period of not more than 90 days, or by both such
fine and imprisonment, at the discretion of the court. For each subsequent
offense, the fine may be increased to not more than $250.00, with
imprisonment in jail for a period of not more than 90 days, or both such fine
and imprisonment at the discretion of the court. Each day of a continuing
violation after conviction shall be considered a separate offense.
(b) The secretary may in his or her discretion bring an action to enforce compliance with this article or any rule, or order hereunder, whenever it appears to the secretary that any person has engaged in, or is engaging in, an act or practice in violation of this article or any rule or order hereunder, or whenever it appears to the secretary that any person has aided, abetted or caused or is aiding, abetting or causing such an act or practice. Upon application by the secretary, the circuit court of the county in which the conduct has occurred or is occurring, or the Circuit Court of Kanawha County shall have jurisdiction to grant without bond a permanent or temporary injunction, decree, or restraining order.
(c) Whenever the secretary refuses to grant or renew a license or revokes a license required by law to operate or conduct an assisted living residence or orders a person to refrain from conduct violating the rules of the secretary, and the person deeming himself or herself aggrieved by the refusal, revocation, or order appeals the action of the secretary, the court may, during pendency of the appeal, issue a restraining order or injunction upon proof that the operation of the assisted living residence or its failure to comply with the order of the secretary adversely affects the well-being or safety of the residents of the assisted living residence. Should a person who is refused a license or the renewal of a license to operate or conduct an assisted living residence or whose license to operate is revoked or who has been ordered to refrain from conduct or activity which violates the rules of the secretary, fails to appeal or should such appeal be decided favorably to the secretary, then the court shall issue a permanent injunction upon proof that the person is operating or conducting an assisted living residence without a license as required by law or has continued to violate the rules of the secretary.
(d) Any assisted living residence that deprives a resident of any right or benefit created or established for the well-being of the resident by the terms of any contract, by any state statute or rule, or by any applicable federal statute or regulation shall be liable to the resident for injuries suffered as a result of the deprivation. Upon a finding that a resident has been deprived of such a right or benefit and that the resident has been injured as a result of the deprivation and unless there is a finding that the assisted living residence exercised all care reasonably necessary to prevent and limit the deprivation and injury to the resident, compensatory damages shall be assessed in an amount sufficient to compensate the resident for the injury. In addition, where the deprivation of any right or benefit is found to have been willful or in reckless disregard of the lawful rights of the resident, punitive damages may be assessed. A resident may also maintain an action pursuant to this section for any other type of relief, including injunctive and declaratory relief, permitted by law. Exhaustion of any available administrative remedies may not be required prior to commencement of suit hereunder.
(e) The amount of damages
recovered by a resident, in an action brought pursuant to this section, are
exempt for purposes of determining initial or continuing eligibility for
medical assistance under §9-4-1 §9-5-2 et seq. of this code
and may neither be taken into consideration nor required to be applied toward
the payment or part payment of the cost of medical care or services available
under said article.
(f) Any waiver by a resident or his or her legal representative of the right to commence an action under this section, whether oral or in writing, shall be null and void as contrary to public policy.
(g) The penalties and remedies provided in this section are cumulative and shall be in addition to all other penalties and remedies provided by law.
§16-5D-16. Availability of reports and records.
[Repealed.]
§16-5D-17. Licenses and rules in force.
[Repealed.]
NOTE: The purpose of this bill is to streamline the method of sending survey reports and receiving plans of correction from nursing homes and assisted living facilities, and give providers the flexibility and efficiency of utilizing electronic mail or facsimile instead of certified mail. The amendment also updates the references to the bureau within the agency responsible for regulating assisted living facilities, the code of state rules for contested cases, and the nomenclature for certain types of care homes. The amendment also establishes the requirement for certain information to be readily available on a website, in lieu of submission of an annual report to the Legislature.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
