W. Va. Code R. § 64-11-13

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

Section 64-11-13 - Administrative Due Process, Administrative Appeals, and Judicial Review

13.1. The Inspector General may deny the provider's application for licensure or licensure renewal; modify or revoke a license; or order any admissions ban or reduction in consumer census for one or more of the following reasons:

13.1.1. The provider fails to submit an adequate plan of correction without formally and timely notifying the Inspector General that the provider intends to exercise its due process rights of appeal;

13.1.2. The Inspector General makes a determination that fraud or other illegal action has been committed;

13.1.3. The provider violates federal, state, or local law relating to building, health, fire protection, safety, sanitation, or zoning; or is noncompliant with payment of workers' compensation or employment security taxes, and fails to remedy such violation given sufficient notice;

13.1.4. The provider conducts practices which jeopardize the health, safety, welfare, or clinical treatment of consumers;

13.1.5. The provider fails or refuses to make records related to compliance with this rule available within a reasonable period of time as requested by the Inspector General; or

13.1.6. The provider refuses to provide access to its service locations within a reasonable period of time as requested by the Inspector General.

13.2. Where the operation of a behavioral health center clearly constitutes an immediate danger of serious harm to consumers served by the behavioral health center, the Inspector General may issue an order of closure terminating operation of all or a specific segment of the provider's behavioral health center license clearly giving rise to the immediate danger of serious harm. A provider appealing such a closure order may continue to operate all or the specified portion of the behavioral health center license pending exhaustion of administrative appeals, judicial appeals, or both.

13.3. Any person, partnership, association, or corporation which establishes, conducts, manages, or operates a behavioral health center without first obtaining a license as herein provided, or who commits a violation as described in this section may be assessed a civil money penalty by the Inspector General in accordance with this section. Each day of continuing violation after a civil money penalty is assessed may be considered a separate violation.

13.3.1. If a behavioral health center is found to be in violation of any provision of this rule, unless otherwise noted herein, the Inspector General may limit, suspend, or revoke the behavioral health center's license: Provided, That the Inspector General may only suspend or revoke a license, if the licensee commits a violation which endangers the health, safety, or welfare of a person;

13.3.2. If the behavioral health center fails to take action to correct a violation after being cited for the violation, the Inspector General may impose a civil money penalty not to exceed $10,000 and, in the case of an owner-operator behavioral health center, limit or revoke the behavioral health center's license;

13.3.3. If the behavioral health center conducts practices which jeopardize the health, safety, welfare, or clinical treatment of consumers when such practices clearly give rise to imminent danger of serious harm or the immediate risk of imminent danger of serious harm, the Inspector General may impose a civil money penalty not to exceed $10,000;

13.3.4. If an owner of a behavioral health center concurrently operates an unlicensed behavioral health center, the Inspector General may impose a civil money penalty upon the owner not to exceed $5,000 per day;

13.3.5. If the owner of a behavioral health center that requires a license under this rule fails to apply for a new license for the behavioral health center upon a change of ownership and operates the behavioral health center under new ownership, the Inspector General may impose a civil money penalty upon the owner, not to exceed $5,000; or

13.3.6. If an owner operates, owns, or manages an unlicensed behavioral health center that is required to be licensed pursuant to this rule; obtains a license to operate a behavioral health center through misrepresentation or fraud; or procures or attempts to procure a license for a behavioral health center for any other person by making or causing to be made any false representation, the Inspector General may assess a civil money penalty of not more than $20,000. Any penalty may be in addition to or in lieu of any other action that may be taken by the Secretary or any other board, court, or entity.

13.3.7. If an owner knowingly operates, owns, or manages an unlicensed behavioral health center that is required to be licensed pursuant to this rule; obtains a license to operate a behavioral health center through misrepresentation or fraud; or procures or attempts to procure a license for a behavioral health center for any other person by making or causing to be made any false representation, the Inspector General may assess a civil money penalty of not more than $20,000. Any penalty may be in addition to or in lieu of any other action that may be taken by the Secretary or any other board, court, or entity.

13.4. Notwithstanding the existence or pursuit of any other remedy, the Inspector General may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, or corporation to restrain or prevent the establishment, conduct, management, or operation of any behavioral health center or violation of any provision of this rule without first obtaining a license therefore in the manner hereinbefore provided.

13.4.1. The Inspector General may also seek injunctive relief if the establishment, conduct, management, or operation of any behavioral health center, whether licensed or not, jeopardizes the health, safety, or welfare of any or all of its consumers.

13.4.2. In determining whether a penalty is to be imposed, the Inspector General will consider the following factors:

13.4.2.a. The gravity of the violation, including the probability that death or serious physical or emotional harm to a consumer has resulted, or could have resulted, from the behavioral health center's actions or the actions of the owner or any staff employed by or associated with the behavioral health center, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated;

13.4.2.b. What actions, if any, the owner or staff took to correct the violations;

13.4.2.c. Whether there were any previous violations at the behavioral health center; and

13.4.2.d. The financial benefits that the behavioral health center derived from committing or continuing to commit the violation.

13.5. Upon finding that a registered or licensed professional has violated the provisions of this rule, the Inspector General will provide notice of the violation to the applicable professional licensing board.

13.6. Before any behavioral health center license is limited, denied, suspended, or revoked or a civil money penalty is assessed, written notice will be given to the owner or owners of the program, stating the grounds of the denial, suspension, revocation, or penalty and the date set for any enforcement action and the date due for any civil money penalty.

13.6.1. The notice will be sent by certified mail or electronically transmitted to the owner or owners at the address where the behavioral health center concerned is located.

13.6.2. Within 10 days of receipt of the notice, the owner or owners may submit a request for an administrative hearing or an informal meeting to address and resolve the findings.

13.6.3. The behavioral health center and its owner or owners will be entitled to be represented by legal counsel at the informal meeting or at the hearing at their own expense.

13.6.4. All of the pertinent provisions of W. Va. Code §29-4-1, et seq., and 69CSR1 shall apply to and govern any hearing authorized by this rule.

13.6.5. If an owner fails to request a hearing within the time frame specified, he or she shall be subject to the full penalty imposed.

13.6.6. The filing of a request for an administrative hearing or an informal meeting does not stay or supersede the enforcement of a limitation, denial, suspension or revocation of a license; the assessment of a civil money penalty; or an enforcement order.

13.7. Informal dispute resolution. -- A provider or licensee adversely affected by citation of a deficient practice issue pursuant to this article or by a citation issued for a deficient practice pursuant to federal law may request the informal dispute resolution process. A provider may contest a cited deficiency as contrary to law or unwarranted by the facts or both. A provider may choose to have the review completed by an independent review organization. Informal dispute resolution is not available for situations described in section 13.6. of this rule and is only available regarding the citation of a deficient practice issue.

13.7.1. The Inspector General will contract with independent review organizations to conduct an independent informal dispute resolution process. The independent review organization will be accredited by the Utilization Review Accreditation Commission.

13.7.2. The informal dispute resolution process is not a formal evidentiary proceeding and utilizing the informal dispute resolution process does not waive the provider's right to a formal hearing.

13.7.3. The informal dispute resolution process consists of the following:

13.7.3.a. No later than 10 working days following the last day of the survey or inspection, the Inspector General will transmit to the provider a statement of deficiencies committed by the behavioral health center. Notification of the availability of the informal dispute resolution process, including the option of an independent review organization, and an explanation of the informal dispute resolution process will be included in the transmittal.

13.7.3.b. Within 10 working days of receipt of the statement of deficiencies, the provider shall return its plan of correction for the cited deficiencies to the Inspector General and may request in writing the informal dispute resolution process to refute the cited deficiencies. The provider must submit its supporting documentation and indicate its request for the informal process at the time of submission. No plan of correction is required for citations under appeal. The Inspector General may not release the report to the public until appealed citations are resolved.

13.7.3.c. Within five working days of receipt of the written request for the informal dispute resolution process made by a provider, the Inspector General, dependent upon the provider's request, will refer the request to an internal team not associated with the survey event to an independent review organization from the list of certified independent review providers approved by the state. The Inspector General will vary the selection of the independent review organization on a rotating basis.

13.7.3.d. Within 10 working days of receipt of the written request for the informal dispute resolution process made by a provider, the informal dispute resolution conference will be scheduled unless additional time is requested by the provider. Before the informal dispute resolution conference, the provider may submit additional information.

13.7.3.e. Neither the Inspector General nor the provider will be accompanied by counsel during the informal dispute resolution conference. The manner in which the informal dispute resolution conference is held is at the discretion of the independent review organization, but is limited to:

13.7.3.e.1. A desk review of written information submitted by the provider;

13.7.3.e.2. A telephonic conference; or

13.7.3.e.3. A face-to-face conference held at the behavioral health center's location or a mutually agreed upon location.

13.7.3.f. If the independent committee determines the need for additional information, clarification, or discussion after conclusion of the informal dispute resolution conference, the Inspector General, the provider, or both, will present the requested information.

13.7.3.g. Within 10 working days of the informal dispute resolution conference, the review committee shall make a determination based upon the facts and findings presented and shall transmit a written decision containing the rationale for its determination to the Inspector General.

13.7.3.h. If the Inspector General disagrees with the determination, the Inspector General may reject it and will issue an order setting forth the rationale for the reversal of the independent review committee's decision to the provider within 10 working days of receiving the determination. The Inspector General may not assign review of the rejection to a designee.

13.7.3.i. If the Inspector General accepts the determination, the Inspector General will issue an order affirming the determination within 10 working days of receiving the independent reviewer's determination.

13.7.3.j. If the independent review committee determines that the original statement of deficiencies should be changed as a result of the informal dispute resolution process and the Inspector General accepts the determination, the Inspector General will transmit a revised statement of deficiencies to the provider within 10 working days of receipt of the determination.

13.7.3.k. Within 10 working days of receipt of the Inspector General's order and the revised statement of deficiencies, the provider shall submit a revised plan to correct any remaining deficiencies to the Inspector General.

13.7.4. Under the following circumstances, the provider is responsible for certain costs for the independent informal dispute resolution review, which shall be remitted to the Secretary within 60 days of the informal dispute resolution order:

13.7.4.a. If the provider requests a face-to-face conference, the provider shall pay any costs incurred by the independent review that exceed the cost of a telephonic conference, regardless of which party ultimately prevails.

13.7.4.b. If the independent decision supports the entirety of the originally written contested deficiency or adverse action taken by the Inspector General, the provider shall reimburse the Inspector General for the cost charged by the independent review organization. If the independent decision supports some of the originally written contested deficiencies, but not all of them, the independent reviewer will rule as to approximate portions of the expense of the hearing to be paid by each party.

13.8. Administrative Appeals and Judicial Review.

13.8.1. Any party who disagrees with the final administrative decision as a result of the hearing may, within 30 days after receiving notice of the decision, appeal the decision to the West Virginia Intermediate Court of Appeals.

13.8.1.a. The filing of a petition for appeal does not stay or supersede the enforcement of the final decision or order of the Inspector General. An appellant may apply to the West Virginia Intermediate Court of Appeals for a stay of or to supersede the final decision or order.

13.8.1.b. The West Virginia Intermediate Court of Appeals may affirm, modify, or reverse the final administrative decision. Any party may appeal the West Virginia Intermediate Court of Appeals' decision to the Supreme Court of Appeals.

13.9. Any person aggrieved by an order or other action by the Inspector General based on this rule may request in writing a hearing by the Inspector General in accordance with "Rules of Procedure for Contested Case Hearings and Declaratory Rulings," 69CSR1, a copy of which may be obtained from the Secretary of State.

W. Va. Code R. § 64-11-13