W. Va. Code R. § 64-75-13

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

Section 64-75-13 - Penalties

13.1. Civil Penalties.

13.1.a. The secretary shall administer penalties for violations of this rule and of W. Va. Code '16-5N-1 et seq. as specified in W. Va. Code '16-5N-1 et seq. and this rule.

13.1.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 issue citations. The secretary shall issue citations and assess supplemental penalties for failure to correct continuing violations: Provided, That for continued failure to correct a violation of a non-life threatening nature, the secretary shall, prior to issuing a citation with a supplemental penalty, notify the licensee or non-licensed operator by certified mail, return receipt requested, that a citation will be issued with a supplemental penalty on a date to be specified by the secretary unless the corrective actions specified by the secretary are implemented in an acceptable manner.

13.1.c. All citations shall be in writing and shall include the basis upon which the secretary assessed the penalty and selected the amount of civil penalty.

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

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

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

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

13.1.e.3. The extent to which the provisions of the applicable statutes or rules were violated.

13.1.f. 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.

13.1.g. 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 four (4) business days after service of the citation or specification of time in which a violation is 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, 64 CSR 1.

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

(a) has not been contested under W. Va. Code '16-5N-12 within thirty (30) days of receipt of notice of the assessment;

(b) has been affirmed under the provisions of W. Va. Code '16-5N-12 and not appealed within thirty (30) days of receipt of the secretary's final order; or 8 has been affirmed on judicial review, as provided in W. Va. Code '16-5N-13. All money collected by assessments of civil penalties or interest shall be paid into a special resident benefit account. The secretary shall apply the money only for the protection of the health or property of residents of facilities operated within the State of West Virginia, including: payment for the costs of relocation of residents to other facilities; operation of a residential care community pending correction of deficiencies or closure; and reimbursement of residents for lost personal funds.

13.2. Restrictions; Revocation.

13.2.a. The secretary may place restrictions upon or revoke the current license of a residential care community, if he or she finds evidence of one (1) or more of the following:

13.2.a.1. 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;

13.2.a.2. The licensee or the administrator of the residential care community has been arrested for, adjudicated, and convicted of any felony or of a misdemeanor relevant for the provision of care in a health care facility or for operating a health care facility;

13.2.a.3. The licensee has been denied or has had a license to operate a health care facility revoked in West Virginia or any other jurisdiction during the previous five (5) years;

13.2.a.4. The 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;

13.2.a.5. The licensee or other person in charge of the residential care community refuses entry to the secretary's duly authorized representative for an inspection or survey;

13.2.a.6. The licensee has inappropriately converted for its own use the property of a resident;

13.2.a.7. The licensee has secured property, or a bequest of property, from a resident by undue influence; or

13.2.a.8. The licensee has submitted false information either on the licensure or renewal application forms or during the course of an inspection or survey of the residential care community.

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

13.2.c. 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 the residential care community or both, when on the basis of inspection he or she determines that:

13.2.c.1. There is an immediate and serious threat to one or more residents; or

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

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

13.2.c.4. An admission ban or reduction in bed capacity or both would place the residential care community in a position to render adequate care.

13.2.d. 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.

13.2.e. 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 or subterfuge.

W. Va. Code R. § 64-75-13