Current through Register Vol. XLI, No. 36, September 6, 2024
Section 64-14-3 - State Administrative Procedures3.1. General Licensing Provisions. 3.1.1. No person, partnership, association, or corporation may operate an assisted living residence in the state of West Virginia without first obtaining a license pursuant to W. Va. Code §16-5D-6 and this rule.3.1.2. A license is valid only for the person and for the location named in the application and on the license, and is not transferable.3.1.2.a. The assisted living residence shall notify the Secretary in writing 30 days prior to a change in name or physical address of the program and request an application for a licensure amendment.3.1.2.b. If the ownership of an assisted living residence changes, the new owner shall notify the Secretary within 10 days and immediately apply for a new license. The new owner's application for a license is valid for three months from the date the application is received by the Secretary.3.1.3. Each assisted living residence location shall be licensed separately, regardless of whether the assisted living residence is operated under the same business name or management as another assisted living residence.3.1.4. The words "clinic," "hospital," "nursing home," "residential care community" or any other words that suggest a type of facility other than an assisted living residence shall not be used in the name or the advertising of the residence.3.1.5. The licensee is responsible for compliance with this rule, W. Va. Code §§16-5D-1, et seq., and other relevant federal and state laws.3.1.6. The Secretary may issue an initial or a renewal license for a period not to exceed one year, except if an applicant submits an application for renewal of a license currently in effect in accordance with this rule and W. Va. Code §§16-5D-1, et seq., together with the required fee described in W. Va. Code §16-5D-6(i). The Office of Health Facility Licensure and Certification shall post the annual consumer price index increases on its website located at: http://ohflac.wvdhhr.org/. The license shall continue in effect until: 3.1.6.a. One year following the expiration date of the license;3.1.6.b. The date of a revocation or suspension of the license pursuant to this rule and W. Va. Code §§16-5D-1, et seq., or3.1.6.c. The date of issuance of a new license, whichever date occurs first.3.2. Initial Licensure Application. 3.2.1. An applicant for initial licensure shall submit a completed application to the Office of Health Facility Licensure and Certification, along with a non-refundable fee, and any additional information the Secretary may require.3.2.2. The applicant shall have his or her signature on the application and have accompanying forms notarized. The signature shall serve as a release for obtaining references, credit, and other background information.3.2.3. The applicant shall pay the cost of the initial licensure inspections, pursuant to W. Va. Code §16-5D-6(i) before the issuance of an initial license.3.2.4. The applicant shall provide to the Secretary a preliminary operating plan that includes a proposed budget with projected monthly income, a balance sheet showing all expenses and income on forms provided by the Secretary, including but not limited to, reimbursement of the owners, lease payment, and monthly rates charged.3.2.5. The applicant shall submit the application and fee at least 90 days prior to the date proposed for the commencement of operations.3.2.6. Except as specified in subsection 3.5. of this rule, and after a satisfactory inspection to ensure compliance with this rule, the Secretary shall issue an initial license.3.3. License Renewal.3.3.1. The licensee shall submit an application for renewal of a license to the Secretary at least 90 days before the expiration date of the current license.3.3.2. Except as specified in subsection 3.4. of this rule, the Secretary shall issue a renewal license to an assisted living residence when the following conditions are met: 3.3.2.a. The residence is found to be in substantial compliance with this rule;3.3.2.b. The applicant has submitted a completed application and all requested financial information; and3.3.2.c. The residence has met all Class I standards of this rule.3.4. Non-Issuance of Initial or Renewal License.3.4.1. The Secretary may refuse to issue or may revoke either an initial or a renewal license if he or she finds evidence of the following:3.4.1.a. The applicant or licensee has a lack of financial stability to operate, such as insufficient capital, delinquent accounts, checks returned because of insufficient funds, and nonpayment of taxes, utility expenses, and other essential services;3.4.1.b. The applicant or licensee has a personal history that has: 3.4.1.b.1. Evidence of abuse, fraud, or substantial and repeated violations of applicable laws and rules in the operation of any health care facility or service organization, or in the care of dependent persons; or3.4.1.b.2. An ineligible employment fitness determination from the West Virginia Clearance for Access: Registry and Employment Screening unit of the Department of Health and Human Resources and not received a variance;3.4.1.c. The applicant or licensee has been denied a license or has had a license to operate a health care facility revoked in West Virginia or any other jurisdiction during the previous five years;3.4.1.d. The applicant or licensee has a record of noncompliance with lawful orders of the department or other licensing or certification agency for any jurisdiction in which the applicant has operated, directed, or participated in the operation of a health care facility;3.4.1.e. The applicant, licensee, or person in charge of the residence has refused the Secretary entry and access to residents and records for an inspection or survey;3.4.1.f. The applicant or licensee has converted the property of a resident for his or her own use, or has secured property or a bequest of property, from a resident by undue influence;3.4.1.g. The applicant, licensee, or administrator has submitted false information to the Secretary during the licensure process or during the course of an inspection or survey of the residence;3.4.1.h. The applicant or licensee has moved residents of the assisted living residence to another location owned or operated by the applicant or licensee without prior approval of the location by the Secretary;3.4.1.i. The applicant or licensee has built or renovated a residence without complying with the requirements of subsection 3.12. of this rule;3.4.1.j. The applicant or licensee has failed to correct a violation of any Class I standard, or has failed to be in substantial compliance with the requirements of this rule; or3.4.1.k. The residence has failed to receive a recommendation for licensure from the state fire marshal.3.4.2. Before refusing to issue an initial or renewal license or revoking a license, the commissioner shall consider all available evidence at the time of the determination, including:3.4.2.a. The history of the residence and the applicant or licensee in complying with this rule; and3.4.2.b. Notices of violations that have been issued to the residence and the applicant or licensee, findings of surveys and inspections, and any evidence provided by the applicant or licensee, residents, law enforcement officials, and other interested individuals.3.5. Provisional License. 3.5.1. The Secretary may issue a provisional license when:3.5.1.a. The licensee has failed to meet all the requirements of W. Va. Code §§16-5D-1, et seq., but care given in the residence is adequate for the residents' needs and the licensee has demonstrated improvement and evidences potential for substantial compliance during the term of the provisional license; or3.5.1.b. All requirements for renewal of a license are not met prior to the expiration of the previously issued license.3.5.2. When the Secretary issues a provisional license, he or she shall determine the period of time for which the license is valid, but the period shall not exceed one year.3.5.3. The Secretary shall not renew a provisional license.3.5.4. If the Secretary denies a provisional license or a provisional license expires, the applicant for a license shall meet the requirements for an initial license, including the cost of an initial application fee and inspections as determined by the Secretary.3.5.5. The Secretary shall not issue a provisional license when the residence is in violation of any Class I standard or has a record of noncompliance with this rule.3.6. Inspections. 3.6.1. The Secretary shall inspect an assisted living residence as necessary to carry out the intent of W. Va. Code §§16-5D-1, et seq., and this rule.3.6.2. The Secretary shall conduct at least one inspection of a residence prior to issuing an initial license, but shall not conduct an inspection until after the following conditions are met:3.6.2.a. The application and application fee have been received and the application has been determined to be complete; and3.6.2.b. All requested documentation has verified the readiness of the residence for an inspection.3.6.3. The Secretary shall conduct periodic unannounced inspections to determine the residence's continued compliance with this rule.3.6.4. The Secretary has the right to enter a home or structure that is believed to be operating or maintained as an assisted living residence without a license, to conduct inspections without prior notice. If the operator or person in charge of the suspected assisted living residence or licensed assisted living residence refuses entry, the Secretary may apply to the circuit court in which the suspected residence is located or the circuit court of Kanawha County for a warrant to authorize an inspection or to compel attendance to the premises of the suspected residence.3.7. Complaint Investigation. 3.7.1. Any person may register a complaint with the Secretary alleging a violation of this rule by an assisted living residence or an individual alleged to be unlawfully operating an assisted living residence, by stating the complaint and identifying the name and address of the residence.3.7.2. The Secretary may conduct investigations as necessary to determine the validity of the complaint and shall notify the licensee of the residence or the individual alleged to be operating an illegal assisted living residence of the complaint at the time of the completion of the investigation.3.7.3. The Secretary shall notify the licensee or the operator of an unlicensed residence of any corrective action required, the time frame for completion of the corrective action, and any disciplinary action to be taken by the Secretary.3.7.4. Except as provided in subdivision 3.7.5. of this rule, the Secretary shall keep the names of a complainant and of any resident named in the complaint confidential and shall not disclose the names to the public without written or verbal permission of the complainant and the resident, and his or her legal representative, if any, unless there is an immediate risk to the resident. The Secretary shall delete the name of a complainant or resident named in a complaint or information contained in the report of an investigation that could reasonably identify the complainant or any resident. Information contained in any report of abuse, neglect, or an emergency situation made in accordance with W. Va. Code §9-6-8 shall be confidential and shall not be released except as provided in that article.3.7.5. If a complaint becomes the subject of a judicial proceeding, nothing in this rule is construed to prohibit the disclosure of information that would otherwise be disclosed in judicial proceedings.3.7.6. Any type of discriminatory treatment of a resident or employee by whom or on whose behalf a complaint has been submitted to the Secretary, within 120 days of the filing of the complaint or the institution of the action, raises a rebuttal presumption that the discriminatory treatment action was taken by the licensee in retaliation for the complaint or action.3.8. Waivers. 3.8.1. The Secretary may waive a requirement of this rule if after thorough investigation, he or she determines that the waiver will not adversely affect the health, safety, welfare, or rights of the residents.3.8.2. The licensee shall submit a written request for a waiver and the request shall: 3.8.2.a. Specify the specific requirement in this rule for which the waiver is requested;3.8.2.b. Specify the time period for which the waiver is requested;3.8.2.c. Include specific and detailed reasons for the request;3.8.2.d. Explain why the specific requirement cannot be complied with; and3.8.2.e. Document that there will be no adverse effect on the residents' health, safety, welfare, or rights if the waiver is granted.3.9. Reports and Records. 3.9.1. The Secretary shall prepare a written report of any inspection made pursuant to this rule within 15 days of the completion of the inspection and shall mail or electronically transmit to the licensee or administrator, as applicable, a statement of deficiencies that contains the violations of this rule.3.9.2. The names of residents shall be kept confidential and shall not be disclosed without the resident's written permission or by order of court of record. Nothing contained in this rule shall be construed to require or permit the public disclosure of confidential medical, social, personal, or financial records of any resident. Before releasing a report or record judged public information, the Secretary shall delete any information regarding a resident that would reasonably permit identification of the resident.3.9.3. The Secretary shall provide notification to the social security administration if a residence demonstrates continued noncompliance with this rule.3.10. Plans of Correction. 3.10.1. The licensee of an assisted living residence, found on the basis of inspection or other investigation to have violations of requirements in this rule, shall develop, sign, and date a plan of correction, and submit it to the Secretary within 15 working days of receipt of the statement of deficiencies.3.10.2. The Secretary shall require immediate correction of violations identified as constituting immediate and serious threats to the health or safety of a resident or employee.3.10.3. For deficiencies other than those constituting immediate and serious threats, the licensee is expected to comply with the rule within 60 days of the inspection, unless the Secretary waives this requirement and allows more time to correct certain types of deficiencies.3.10.4. The plan of correction shall specify:3.10.4.a. The violations to be corrected;3.10.4.b. The actions taken or proposed to correct the violations and procedures to prevent their recurrence; and3.10.4.c. The dates on which each violation is corrected or by which each will be corrected, that allows the shortest possible time to reasonably correct each specific violation.3.10.5. The Secretary shall notify the licensee in writing of his or her approval, suggested modifications, or rejection of the plan of correction, or any part thereof.3.10.6. If modifying or rejecting the proposed plan of correction, the Secretary shall state the reasons for the modification or rejection.3.10.7. If the Secretary rejects the plan of correction, the licensee has up to 15 working days from the receipt of the Secretary's determination to submit a revised plan.3.10.8. The Secretary may conduct a follow-up, on-site inspection to verify the correction of any violations identified during an inspection or any other investigation.3.11. Classification of Standards. In accordance with W. Va. Code §16-5D-5(c), the classification for each standard indicates the most serious classification that may be assigned to that standard.
3.12. New Construction, Additions, Renovations, and Alterations.3.12.1. The requirements of this section apply in total to all proposed assisted living residences. Existing residences proposing additions and renovations shall meet only the requirements determined applicable by the Secretary to the new or renovated portion.3.12.2. For new construction, additions, renovations, or alterations to existing residences, and before construction begins on a proposed residence, the applicant shall submit a complete set of drawings and specifications for the architectural, structural, and mechanical work as follows: 3.12.2.a. For a large assisted living residence, an architect or engineer registered in West Virginia shall prepare, sign, and seal the submitted set of construction drawings and specifications and submit one set of these documents to the Secretary and the state fire marshal for approval. The registered architect or engineer shall also inspect the new residence, or the additions and renovations, during the construction phase.3.12.2.b. For a small assisted living residence, the applicant shall submit a set of drawings and specifications that are drawn to scale and fully dimensioned, to the Secretary and state fire marshal for approval.3.12.2.c. Unless substantial construction is started within one year of the date of approval of final drawings, the architect, engineer, or applicant, whichever applicable, shall obtain written permission from the Secretary that the plan approval for construction is still valid and in compliance with this rule.3.12.3. The Secretary shall inspect sites for all proposed residences and sites of additions or renovations to existing residences, prior to the applicant initiating construction. Sites shall: 3.12.3.a. Have adequate drainage to divert surface water and be located in an area above the 100-year flood plain;3.12.3.b. Have a water supply that is safe and sized to meet all residential needs and requirements of the sprinkler system and has as its source of water either: 3.12.3.b.1. A public water system that complies with the Bureau for Public Health rule, "Public Water Systems," W. Va. Code R. §§64-3-1, et seq.; or3.12.3.b.2. A water well that complies with the Bureau for Public Health rules, "Water Well Regulations," W. Va. Code R. §§64-19-1, et seq., and "Water Well Design Standards," W. Va. Code R. §§64-46-1, et seq.; and3.12.3.c. Have precautions to assure the residents' safety, if located near railroads, freight yards, traffic arteries, or airports.3.12.4. A qualified soils engineer shall review any questionable soil conditions, high walls, or surface water runoff, and if conditions require, perform earth core borings and laboratory tests. If engineered soil is installed or other soil tests conducted, the applicant shall provide the Secretary with copies of the soil test reports.3.12.5. The Secretary shall inspect and approve all construction, new additions, renovations, or alterations prior to the admission of new or additional residents. When construction is substantially complete, the applicant shall submit a substantial completion form signed by all the parties involved and a completed inspection request form to the Secretary.3.12.6. An assisted living residence shall pay a $400 fee plus the actual costs of the initial inspections made by the Secretary prior to issuing a license. The cost shall be billed to the assisted living residence or owner(s) by the Secretary after the inspections and must be paid in full before a license is issued.3.12.7. The applicant shall submit plans for the addition, removal, or modification of equipment that is permanently affixed to the building or that may otherwise involve or necessitate new construction, alterations, or additions to the residence to the Secretary for approval.3.12.8. Other changes involving equipment, that may or may not require physical changes in the residence, but that may relate to other standards and requirements of this rule may require the Secretary's approval. The applicant shall request approval in advance from the Secretary regarding a specific change or rearrangement. Areas in which changes are likely to require approval include, but are not limited to, the kitchen, the laundry, and the heating equipment.3.12.9. The applicant shall submit the plan of operation to the Secretary for approval, and the Secretary shall determine the licensed bed capacity. For an increase in the licensed bed capacity, the licensee shall obtain prior written approval of the Secretary.3.12.10. The residence shall comply with the state fire commission, the International Building Code, 2003 Ed.3.12.11. The residence shall comply with the Fire Commission rule, "Fire Code," W. Va. Code R. §§87-1-1, et seq.3.12.12. The residence shall comply with the Americans with Disabilities Act (ADA) and the American National Standards Institute (ANSI) codes.3.12.13. The residence shall comply with local building or zoning codes if they require standards higher than those required by this rule.3.12.14. The applicant shall have evidence of compliance signed by local fire, building, and zoning officials available onsite for review.3.12.15. The residence shall have an all-weather, hard surface road that connects directly to a highway.3.12.16. The residence shall have parking areas with:3.12.16.a. Clean, solid, earth beds; a compacted stone base; and a hard surface, all-weather finish coat; free of broken, gaped, or uneven paving, with slopes that permit good drainage; and3.12.16.b. Adequate spaces for all staff on duty and a minimum of one parking space for each five beds.3.12.17. The residence shall have hard, slip-resistant surface concrete walks at all exits that connect to the main walk or parking area, that are a minimum of 36 inches wide.3.12.18. The applicant shall ensure that low windows, open porches, changes in floor level, and similar potential hazards are designed so that the danger of accidents is minimized, and that dangerous areas on the site are safeguarded.3.12.19. The applicant shall store oxygen outdoors in an enclosure protected from the weather or in a well-ventilated oxygen storage room of approved construction, with doors locked to prevent unauthorized entry.3.12.20. The residence shall have a call system that is audible to staff who are on duty and that can be accessed from each bed and other areas as necessary for the safety of residents. Electronic call systems may be required based on the size of the residence, the staffing patterns, and the configuration of the building.3.12.21. Bedrooms shall: 3.12.21.a. Have at least 100 square feet of floor area per resident in single occupancy rooms, and 90 square feet of floor area per resident in double occupancy rooms;3.12.21.b. Have an outside exposure through a vertical transparent window;3.12.21.c. Not extend below ground level unless granted written approval by the Secretary; and3.12.21.d. Not be occupied by more than two persons.3.12.22. The residence's toilet and bathing facilities shall provide the following: 3.12.22.a. A minimum of two bathrooms, each containing a flushing toilet and hand washing sink, with a mirror over the sink, at a ratio of no less than one toilet and lavatory for every six residents;3.12.22.b. A minimum of one bathing facility per floor, with a bath tub or shower, equipped with non-slip surfaces, a flushing toilet, and a hand washing sink, at a ratio of no less than one bathing facility for every 10 residents;3.12.22.c. Grab-bars at toilets, tubs, and showers that are securely mounted to the finished wall with a steel plate or a two inch by six-inch wood plate backing behind the wall. Grab bar brackets shall be spaced to support 250 pounds of a concentrated load at any point on the grab bar; and3.12.22.d. Bathroom doors with locking type hardware that swing outward and can be opened from outside in the event of an emergency.3.12.23. The residence shall have a dining area of at least 15 square feet per resident and an area of at least 15 square feet per resident for leisure space. The dining room may serve as part of the leisure room, and if combined, a dining and leisure room area shall have a minimum of 30 square feet per resident.3.12.24. If the residence provides laundry services, the laundry room shall have separation between the soiled and clean laundry, mechanical ventilation in the soiled area, a clean area large enough for folding linens, and venting to the outside for any electric or gas dryer.3.12.25. The residence shall have at least one service sink per floor for a sanitary means of disposal of waste water in an area inaccessible to residents.3.12.26. The residence shall have sewage disposal in accordance with Bureau for Public Health rules, "Sewer Systems, Sewage Treatment Systems, and Sewage Tank Cleaners, "W. Va. Code R. §§64-9-1, et seq., and "Sewage Treatment and Collection System Design Standards," W. Va. Code R. §§64-47-1, et seq.