W. Va. Code R. § 64-85-11

Current through Register Vol. XLI, No. 36, September 6, 2024

Section 64-85-11 - Penalties

11.1. Civil Penalties.

11.1.a. For violations of this rule, the secretary shall administer the civil penalties in the West Virginia Code and rules applicable to the facility.

11.1.b. Upon completion of a report of inspection, the secretary shall determine what, if any, civil penalties are to be imposed pursuant to the West Virginia Code and this rule, and any rule applicable to the primary facility and issue citations. The secretary shall assess supplemental penalties for a facility's failure to correct continuing violations: Provided, that where supplemental penalties have been assessed for continued failure to correct a violation of a non-life threatening nature, the secretary shall, prior to issuing a written citation, notify the licensee or non-licensed operator by registered or certified mail, return receipt requested, that civil penalties will be imposed on a date to be specified by the secretary unless the corrective actions specified by the secretary are implemented in an acceptable manner.

11.1.c. The secretary shall issue all citations in writing and shall include at least the following:

11.1.c.1. The penalty;

11.1.c.2. A description of the nature of the violation, fully stating the specific statutory or rule provision and the manner in which the licensee or non-licensed operator violated that statutory provision or provision of the rule; and

11.1.c.3. The basis upon which the secretary assessed the penalty and selected the amount of civil money penalty, as well as the basis for the calculations.

11.1.d. The name of any resident jeopardized by the violation shall not be specified in the citation.

11.1.e. Each day a violation continues after the date by which correction was required by an approved plan of correction, or if an approved plan of correction was not submitted, the date on which the plan was due constitutes a separate violation.

11.1.f. In both determining to assess a civil penalty and in fixing the amount of civil penalty to be imposed for violations, the secretary shall consider the gravity of the violation, which shall include:

11.1.f.1. The degree of substantial probability that death or serious physical harm will result and, if applicable, did result from the violation;

11.1.f.2. The severity of serious physical harm most likely to result, and if applicable, that did result from the violation; and

11.1.f.3. The extent to which the provisions of the applicable statutes or rules were violated.

11.1.g. If a licensee or a non-licensed operator does not plan to contest a citation which imposes a penalty, he or she shall submit to the secretary, within ten (10) business days after the issuance of the citation, the total sum of the penalty assessed.

11.1.h. If a licensee or a non-licensed operator desires to contest a citation which imposes a penalty or the date specified for correction of a violation, he or she shall, within ten (10) business days after service of the citation or specification of time in which violations are to be corrected, serve upon the secretary, either personally or by registered or certified mail, the licensee's or non-licensed operator's written notice pursuant to West Virginia Department of Health and Human Resources Administrative Rules, Rules of Procedure for Contested Case Hearings and Declaratory Rulings, 64CSR1.

11.1.i. The assessments for penalties and for costs of legal action taken under the relevant W.Va. Code for the facility shall have monthly interest assessed at two percent (2%) on the last day of each month in which occurs the thirtieth (30^th) day after receipt of notice of the assessment or after the month in which occurs the thirtieth (30^th) day after receipt of the secretary's final order following a hearing, whichever is later.

11.1.i.1. All assessments against a facility that are unpaid shall be added to the facility's licensure fee and may be filed as a lien against the property of the licensee or operator of the facility.

11.1.j. The secretary shall, in a civil judicial proceeding, recover any unpaid assessment which :

(a) has not been contested under the applicable statute or rule within thirty (30) days of receipt of notice of the assessment; (b) has been affirmed under the applicable statute or rule and not appealed within thirty (30) days of receipt of the secretary's final order; or (c) has been affirmed on judicial review, as provided in the applicable statute or rule.

11.1.j.1. All money collected by assessments of civil penalties or interest shall be paid into a special resident benefit account and shall be applied by the secretary only for the protection of the health or property of residents of facilities operated within the State of West Virginia, including: payment for costs of relocation of residents to other facilities; operation of a home pending correction of deficiencies or closure; and reimbursement of residents for personal funds lost.

11.2. Suspension or Revocation of the License.

11.2.a. The secretary may suspend or revoke the current license of the alzheimer's/dementia unit or program, if he or she finds evidence of one (1) or more of the following:

11.2.a.1. The facility failed to provide to prospective patients or their legal representatives, in writing, the form of care or treatment specific to alzheimer's residents that contains the information set forth on W. Va. Code § 16-5R-4(c)(1-6);

11.2.a.2. The facility continued to advertise, market, or otherwise promote the facility as a specialized alzheimer's/dementia care unit or program after receiving notice that the unit or program does not meet department standards.

11.2.a.3. The facility failed to be in substantial compliance with the standards set forth in this rule or the rule applicable to the primary facility.

11.2.b. The secretary shall consider all available evidence at the time of the determination, including the history of the facility, unit or program and the applicant in complying with this rule, notices of violations which have been issued to the facility and the applicant, findings of surveys and inspections, and any evidence provided by the facility, unit or program, residents, law enforcement officials, and other interested individuals.

11.3. Ban on New Admissions. Reduction in Bed Capacity.

11.3.a. In addition to all other actions and penalties specified in this rule, the secretary may ban new admissions by order until further notice by the secretary or reduce the bed capacity of a unit or both, when on the basis of inspection he or she determines that:

11.3.a.1. There is an immediate and serious threat to one or more residents;

11.3.a.2. There are poor care outcomes resulting in an avoidable decline in a resident's condition; or

11.3.a.3. There has been a decline in the functional abilities of one or more residents resulting from neglect or abuse; and

11.3.a.4. An admission ban or reduction in bed capacity or both would place the facility, unit or program in a position to render adequate care.

11.3.b. The secretary shall notify a licensee of an admissions ban or reduction in bed capacity or both, stating the terms of the order, the reasons for the order and the date set for compliance with the order.

11.3.c. In addition to all other actions and penalties specified by law and this rule, the secretary may revoke a license which has been obtained through the use of fraud and subterfuge.

W. Va. Code R. § 64-85-11