W. Va. Code R. § 64-11-4

Current through Register Vol. XLI, No. 17, April 26, 2024

Section 64-11-4 - State Administrative Procedures

4.1. General Licensure Provisions.

4.1.1. Before establishing, operating, maintaining, or advertising within the State of West Virginia as a behavioral health center as defined in this rule, a provider shall first obtain from the Secretary a license authorizing the operation.

4.1.2. A license is valid for the provider named and location or locations listed in the application and is not transferable.

4.1.3. The provider shall surrender an invalid license to the Secretary upon written demand.

4.1.4. The provider shall notify the Secretary prior to the sale or merger of the entity if the ownership of a provider changes. The Secretary will require that a new license be obtained.

4.1.5. The Secretary will make a decision on each complete application within 60 days of its receipt, provided a positive recommendation has been received from the Fire Marshal, and will provide to unsuccessful applicants written reason for the decision.

4.1.6. The Secretary will perform an onsite inspection prior to issuing initial, renewal, amended if applicable, or provisional licenses. Such inspection will be performed within 60 days of receipt of a complete application, provided a positive recommendation has been received from the Fire Marshal.

4.1.7. The Secretary may enter the premises of any practice, office, or facility if the Secretary has reasonable belief that it is being operated or maintained as a behavioral health center without first obtaining a license.

4.1.8. If the owner or person in charge of a licensed behavioral health center or of any other unlicensed practice, office, or facility, which the Secretary has reasonable belief is being operated or maintained as a behavioral health center refuses entry pursuant to this rule, the Secretary shall petition the Circuit Court of Kanawha County or the county in which the facility is located for an inspection warrant.

4.1.9. If the Secretary finds, based on an inspection, that any person, partnership, association, or corporation is operating as a behavioral health center without a license, the behavioral health center shall apply for a license within 10 days.

4.1.10. A behavioral health center that fails to apply for a license is subject to the penalties established by section 13 of this rule.

4.2. License Application.

4.2.1. The provider shall submit an application for licensure, along with the required fee, when establishing a new location for service provision, initiating or relocating a program, or renewing an expiring license. Providers shall submit an application at least 60 days in advance of the need for licensure. All applications are available online in the Behavioral Health Center portion of the OHFLAC website at ohflac.wvdhhr.org.

4.2.2. The provider shall notify the Secretary 60 days in advance of the following:

4.2.2.a. A change in location of administrative offices;

4.2.2.b. A change in ownership;

4.2.2.c. A significant change in the population served or intensity of service provided; or

4.2.2.d. Termination of operation.

4.2.3. An amended license application shall be submitted to the Secretary for a change in the geographic location of a service or facility, a change in the services to be provided, or a change in the bed capacity of a residential service location.

4.2.4. The provider shall submit all required information or the application is valid.

4.2.5. The application shall be signed by a member of the governing body, the chief executive officer, or both.

4.3. Issuance. If an applicant meets all provisions of this rule, the Secretary shall issue a license in accordance with this section.

4.4. Types of Licenses. -- Following application and review, the Secretary will issue a license in one of three categories:

4.4.1. Initial License. -- The Secretary will issue an initial license to providers establishing a new behavioral health center found to be in compliance with regard to policy, procedure, provider, record keeping, and service environment rules. An initial license shall expire not more than six months from date of issuance and will not be re-issued. After a complete application for a regular license with required fee has been received, the existing initial license shall not expire until the regular license has been issued or denied.

4.4.2. Regular license. -- The Secretary will issue a regular license to providers complying with this rule. It expires not more than two years from the date of issuance. The Secretary may issue a regular license of shorter duration than two years to a provider.

4.4.2.a. A regular license may be amended by the Secretary at any time during the cycle to reflect changes in the behavioral health center's service classification, programs, structure, or population.

4.4.2.b. A valid regular license shall be considered in effect until the Secretary temporarily extends or denies in writing renewal of the license or until the Secretary initiates formal action to terminate or otherwise modify the license and all due process actions have been resolved.

4.4.3. Provisional license. -- The Secretary may place a behavioral health center on provisional license status if the provider is not in substantial compliance with this rule but does not pose a significant risk to the rights or health and safety of a consumer.

4.4.3.a. Such status shall expire not more than six months from date of issuance and will not be consecutively re-issued unless the provisional recommendation is that of the state fire marshal.

4.4.3.b. If a behavioral health center is issued provisional license status, notification of that provisional status shall be publicly posted in the location of the behavioral health center receiving provisional status for the duration of the provisional status.

4.4.3.c. The Secretary will re-evaluate a behavioral health center operating under a provisional status before or near the end of the provisional period.

4.4.3.d. Once the behavioral health center is deemed to be in substantial compliance with this rule, the provisional status of the behavioral health center will be lifted.

4.4.3.e. If the behavioral health center does not regain substantial compliance with this rule within the provisional period, the license for the behavioral health center will be terminated: Provided, That if the review has not yet been completed by the Secretary within the designated time frame, the program or service may continue to operate until such time as the review has been completed and due process options, if any, are pursued to completion.

4.5. Construction and Alteration.

4.5.1. Before new construction begins, a provider shall submit to the Secretary for approval a copy of the site drawings and specifications for the architectural structure and mechanical work.

4.5.2. Before alteration begins, the provider shall consult with the Secretary regarding construction objectives. If the alteration does not affect consumer care or does not have an effect upon areas of a building or buildings in which consumer care is provided, the alteration will not be reviewable.

4.5.3. New construction and alterations shall use the most current Guidelines for Design and Construction of Residential Care Facilities as recognized by the American Institute of Architects, Academy of Architecture for Health with assistance from the U. S. Department of Health and Human Services shall be used as planning and building standards.

4.5.4. The Secretary may require site drawings or other materials depending on the extent and type of alteration, provided that normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility to provide consumer care.

4.5.5. All altered structures, depending on the extent and type of alterations, and new structures owned or leased by the provider shall conform to the Americans with Disabilities Act (ADA) as amended.

4.5.6. All plumbing shall meet the requirements of local plumbing codes or, in the absence thereof, the National Plumbing Code and be maintained and repaired in a state to conform with its intended purpose.

4.5.7. The Secretary will provide consultation and technical assistance in obtaining compliance with this rule.

4.6. Inspections and Records.

4.6.1. The provider shall comply with any reasonable requests from the Secretary to have access to the service, staff, consumers, and relevant records of the agency. Consumers, their DLRs, or both may be interviewed with his or her permission.

4.6.2. The provider may maintain files in an electronic medium.

4.6.3. The provider shall provide upon request all records required by the Secretary to determine compliance with this rule.

4.6.4. Current consumer records necessary to provide care shall be maintained at the location in which the consumer services are provided. Consumer records not necessary to provide care shall be maintained at the location in which the consumer services are provided, or a central administrative office.

4.6.5. The provider shall establish a process for maintaining current, easily accessible consumer records from intake through discharge.

4.6.6. The Secretary may conduct announced and unannounced inspections of all aspects of the provider's operation and premises. A consumer may deny access to his or her place of residence unless it is owned or leased by the provider or unless there is evidence of a clear and immediate danger to the health of a consumer.

4.6.7. A provider shall permit review and, upon request, provide a copy of a consumer's medical records, personnel records, and other relevant records as requested by the Secretary. The Secretary will ensure the confidentiality of such information, including consumer or employee protected health information.

4.6.8. The Secretary will inspect a licensed behavioral health center 30-to-90 days prior to the expiration of its license.

4.6.9. The Secretary will issue a report within 10 working days of completion of an inspection.

4.6.10. The report may result in a citation. The Secretary will describe the provider's non-compliance with the standard in detail and the provider shall be expected to supply the Secretary with a plan of correction as described in the provisions of this rule.

4.6.11. An ICF/IID for adults, also licensed as a behavioral health center, must submit a renewal application but will be exempt from an on-site renewal inspection only. An ICF/IID will not be exempt from complaint investigations, enforcement, or any other provisions of this rule.

4.7. Complaint Investigation.

4.7.1. Any person may file a complaint with the Secretary alleging violation of applicable laws or rules by a provider. Incidents reported to the Secretary may be considered complaints at the discretion of the Secretary but are not required to be considered complaints. A complaint shall state the nature of the complaint and the provider or behavioral health center by name.

4.7.2. The Secretary may conduct unannounced inspections of behavioral health centers involved in a complaint and any other investigations necessary to determine the validity of a complaint.

4.7.3. At the time of the investigation, the investigator will present state identification and request to speak to the person in charge of the location. The investigator will instruct that person to contact the chief executive officer.

4.7.4. The Secretary will give the provider a written report of the results of the investigation along with specific findings, detailed analysis of licensure regulations implicated, a report of any violations, and a notice describing the provider's due process rights. The written report will be issued by the Secretary within 10 working days of completing the investigation. The complaint investigation may result in a citation, recommendation, both, or neither.

4.7.5. The Secretary will inform the complainant that an investigation was conducted and whether it was substantiated the Secretary will keep the names of a complainant and of any consumer or DLR involved in the complaint or investigation and any information that could reasonably lead to the identification of the complainant, confidential, but will disclose the general nature of the complaint to the provider upon determining that a violation has occurred.

4.7.6. If a complaint becomes the subject of a judicial proceeding, nothing in this rule prohibits the disclosure of information that would otherwise be disclosed in judicial proceedings.

4.7.7. The provider shall not discharge or discriminate in any way against any individual or group of individuals who has been a complainant, on whose behalf a complaint has been submitted, or who has participated in an investigation process by reason of that complaint.

4.8. Reports of Investigations and Inspections.

4.8.1. All investigations and inspections will result in a written report by the Secretary, even if no violation has been identified.

4.8.2. The report will specify the areas of non-compliance with the rule it violates and describe the precise data, observation, or interview to support the deficiency.

4.8.3. Information in reports or records is available to the public except:

4.8.3.a. As specified in this section regarding complaint investigations;

4.8.3.b. Information of a personal nature from a consumer or personnel record; and

4.8.3.c. Information required to be kept confidential by state or federal law.

4.8.4. The Secretary will not make a report or complaint public until the provider has the opportunity to review the report, submit a plan of correction, have that plan of correction approved, and obtain an approved plan of correction, if necessary.

4.9. Plans of Correction.

4.9.1. Within 10 working days after receipt of the inspection report, the provider shall submit to the Secretary for approval a written plan to correct all deficiencies that are in violation of this rule and described by citation. Citations being appealed through the identified methods of due process and not involving harm may not require a plan of correction until after due process. The plan shall specify:

4.9.1.a. Action taken or procedures proposed to correct the areas of non-compliance and prevent their reoccurrence;

4.9.1.b. Date of completion of each action taken or to be taken; and

4.9.1.c. Signature of the chief executive officer or his or her designee.

4.9.2. The Secretary will approve, modify, or reject the proposed plan of correction in writing within 10 working days of receipt. The provider shall make modifications to the plan as requested by the Secretary.

4.9.3. The Secretary will state the reasons for rejection or modification of any plan of correction.

4.9.4. The provider shall submit a revised plan of correction within 10 working days whenever the Secretary rejects a plan of correction. If the Secretary cannot approve the second submitted plan of correction, he or she shall supply a directed plan of correction. The final report shall denote that the plan of correction was directed.

4.9.5. The provider shall immediately correct an area of non-compliance that clearly results in an immediate risk to the health or safety of a consumer or other persons.

4.9.6. The Secretary may release a report to the public no less than 10 days after receipt of an approved plan of correction or a directed plan of correction unless the provider has elected to pursue due process appeals and has notified the Secretary of the intent to do so.

4.10. Waivers - A provider shall comply with all relevant requirements unless a waiver or variance for a specific requirement has been granted through a prior written agreement. This agreement shall specify the specific requirement to be waived, the duration of the waiver, and the terms under which the waiver is granted.

4.10.1. Waiver of specific requirements will be granted only when the provider has documented and demonstrated that it complies with the intent of the particular requirement in a manner not permitted by the requirement.

4.10.2. The waiver shall contain provisions for a review of the waiver if necessary.

4.10.3. When a provider fails to comply with the waiver agreement, the agreement is subject to immediate cancellation, provided that such cancellation shall allow sufficient time to make alternative arrangements for consumers. The Secretary will immediately inform the provider in writing of cancellation of a waiver.

4.11. For the purposes of substance use disorder services, if a provider is enrolled to accept West Virginia Medicaid and is authorized to provide behavioral health services in its state, the Office of Health Facility Licensure and Certification may through reciprocity authorize it as a West Virginia Behavioral Health Center under this rule.

W. Va. Code R. § 64-11-4