W. Va. Code R. § 64-14-12

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

Section 64-14-12 - Penalties and Equitable Relief

12.1. Grounds for Penalties and Injunctions.

12.1.1. Any person, partnership, association, or corporation which establishes, conducts, manages, or operates an assisted living residence without first obtaining a license therefore or which violates any provisions of this law or rule may be assessed a civil money penalty by the Secretary in accordance with this rule, and, if applicable, W. Va. Code §16-5D-10. Each day of continuing violation after notification of the infraction may be considered a separate violation and may be subject to an additional civil money penalty.

12.1.2. If the assisted living residence's owner or owners or administrator knowingly and intentionally misrepresent actions taken to correct a violation, the Secretary may impose a civil money penalty not to exceed $10,000, and revoke or deny the assisted living residence's license.

12.1.3. If an owner or owners of an assisted living residence concurrently operates an unlicensed assisted living residence, the Secretary may impose a civil money penalty upon the owner or owners or administrator, or both, not to exceed $5,000. If the owner or owners continue to operate the unlicensed assisted living residence 10 days after notification of the infraction, the Secretary may impose a civil monetary penalty not to exceed $5,000 per day.

12.1.4. If the owner of an assisted living residence that requires a license under this article fails to apply for a new license for the residence upon a change of ownership and operates the residence under the new ownership, the Secretary may impose a civil money penalty not to exceed $5,000.

12.1.5. If an owner knowingly operates, owns, or manages an unlicensed assisted living residence that is required to be licensed pursuant to this article; knowingly dispenses or causes to be dispensed, controlled substances in an unlicensed assisted living residence that is required to be licensed; or obtains a license to operate an assisted living residence through misrepresentation or fraud; procures or attempts to procure a license for an assisted living residence for any other person by making or causing to be made any false representation, the Secretary may assess a civil money penalty of not more than $20,000. The 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.

12.2. The Secretary may deny an assisted living residence's application for licensure or application for renewal licensure; revoke or suspend a license; order an admissions ban or reduction in patient census for one or more of the following reasons:

12.2.1. The Secretary makes a determination that fraud or other illegal action has been committed;

12.2.2. The residence has violated federal, state, or local law relating to building, health, fire protection, safety, sanitation, or zoning;

12.2.3. The residence conducts practices that jeopardize the health, safety, welfare, or clinical treatment of a resident;

12.2.4. The residence has failed or refused to submit reports, comply with the documentation requirements of this rule, or make records available as requested by the Secretary or his or her designee; or

12.2.5. A residence has refused to provide access to its location or records as requested by the Secretary, or his or her designee.

12.3. Notwithstanding the existence or pursuit of any other remedy, the Secretary 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 assisted living residence or violation of any provisions of this rule without first obtaining a license therefore in the manner hereinbefore provided.

12.3.1. The Secretary may also seek injunctive relief if the establishment, conduct, management, or operation of any assisted living residence, whether licensed or not, jeopardizes the health, safety, or welfare of any or all of its residents.

12.3.2. In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the Secretary shall consider the following factors:

12.3.2.a. The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident has resulted, or could have resulted, from the assisted living residence's actions or the actions of the administrator or any licensed practitioner employed by or associated with the residence, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.

12.3.2.b. What actions, if any, the administrator or licensed professional took to correct the violations;

12.3.2.c. Whether there were any previous violations at the assisted living residence; and

12.3.2.d. The financial benefits that the assisted living residence derived from committing or continuing to commit the violation.

12.4. Upon finding that a licensed professional has violated the provisions of this rule, the Secretary shall provide notice of the violation to the applicable professional licensing board.

W. Va. Code R. § 64-14-12