W. Va. Code R. § 64-75-4

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

Section 64-75-4 - State Administrative Procedures

4.1. General licensing provisions.

4.1.a. A person establishing, maintaining, offering, operating or advertising a residential care community shall obtain from the secretary a license authorizing the operation, which license remains unsuspended, unrevoked and unexpired.

4.1.b. A license is valid only for the licensee and for the structure named in the application and identified on the license. Separate buildings on the same premises operated as residential care communities require separate licenses. The license is not transferable or assignable. The license shall be surrendered to the secretary upon written demand, or immediately, when the residential care community ceases provision of services.

4.1.c. Neither the name of the residential care community nor the residential care community's advertising shall use the words "clinic,@ "hospital,@ "nursing home,@ "personal care home" or any other words which suggest a type of facility other than a residential care community. If the licensee owns more than one (1) residential care community, each residential care community shall have a separate identification. The licensee shall notify the secretary of any change in the name of the residential care community.

4.1.d. Residential care communities which have residents who need limited and intermittent nursing care shall comply with Section 12 of this rule in addition to all other requirements of this rule.

4.1.e. The licensee is responsible for compliance with this rule, the terms of the residential care community's license; W. Va. Code '16-5N-1 et seq., titled Residential Care Communities; other relevant federal, state or local laws and regulations; and with the residential care community's policies.

4.1.f. A licensee shall not rent, lease or use the premises for any purpose that disrupts the activities of the residents.

4.1.g. A residential care community that intends to provide adult day care shall notify the secretary of the number of individuals it plans to serve in addition to the residential care community census. The secretary shall approve the provision of day care for the number of individuals identified based on space, accommodations and staffing before day care residents are accepted. Individuals being provided this service shall have health screening as required for residential care community residents and shall be capable of self-preservation.

4.1.h. A licensee shall not advertise, assert, represent or otherwise imply in any manner that it may render care or services other than those specifically identified within the scope of its license.

4.1.i. The secretary may issue an initial or a renewal license for a period not to exceed one (1) year: Provided, That if an applicant timely submits, in conformance with this rule and W. Va. Code '16-5N-1 et seq., an application for renewal of a license currently in effect, together with payment of the proper fee, the license shall continue in effect until;

4.1.i.1. One (1) year following the expiration date of the license;

4.1.i.2. The date of the revocation or suspension of the license pursuant to this rule and W. Va. Code '16-5N-1 et seq.; or

4.1.i.3. The date of issuance of a new license, whichever date occurs first.

4.2. Initial License.

4.2.a. Applicants for initial licensure as a residential care community shall submit their applications to the office of health facility licensure and certification of the West Virginia department of health and human resources. Pursuant to W. Va. Code '16-5N-6(a), the application shall include the following information:

4.2.a.1. The name and address of the applicant;

4.2.a.2. The name, address and principal occupation:

4.2.a.2.A. Of each person who, as a stockholder or otherwise, has a proprietary interest of ten percent (10%) or more in the applicant;

4.2.a.2.B. Of each officer and director of a corporate applicant; and

4.2.a.2.C. Of each trustee and beneficiary of an applicant which is a trust; and where a corporation has a proprietary interest of twenty-five percent (25%) or more in an applicant, the name, address and principal occupation of each officer and director of the corporation;

4.2.a.3. The name and address of the owner of the premises of the residential care community or proposed residential care community, if he or she is a different person from the applicant, and in that case, the name and address:

4.2.a.3.A. Of each person who, as a stockholder or otherwise, has a proprietary interest of ten percent (10%) or more in the owner of the premises of the residential care community or proposed residential care community;

4.2.a.3.B. Of each officer and director of a corporate applicant; and

4.2.a.3.C. Of each trustee and beneficiary of the owner of the premises of the residential care community or proposed residential care community if he or she is a trust; and, where a corporation has a proprietary interest of twenty-five percent (25%) or more in the owner of the premises of the residential care community or proposed residential care community, the name and address of each officer and director of the corporation;

4.2.a.4. Where the applicant is the lessee or the assignee of the residential care community or the premises of the proposed residential care community, a signed copy of the lease and any assignment of the lease;

4.2.a.5. The name and address of the residential care community or the premises of the proposed residential care community;

4.2.a.6. The proposed bed quota of the residential care community and the proposed bed quota of each unit of the residential care community;

4.2.a.7. A list of the residential care community's employee positions and the duties of each position;

4.2.a.8. The name and address of the individual who is to serve as administrator;

4.2.a.9. Evidence of compliance with applicable laws and rules governing zoning, buildings, safety, fire prevention and sanitation as required by this rule; and

4.2.a.10. Documentation that the licensee has made provisions in policy to ensure the continuing care of all residents for the thirty (30) day period after notification of a pending closure. Any expenses incurred by the department to provide continuing resident care (i.e., food, staff, etc.) during this thirty (30) day period, are the responsibility of the owner.

4.2.b. The application shall be on forms provided by the secretary, and shall bear the notarized signature of the applicant. The signature on the application and accompanying forms serves as a release for obtaining references, credit and other background information. The application shall be accompanied by a non-refundable license fee in the amount shown on the form as established pursuant to W. Va. Code '16-5N-6(e). The fee shall be in the form of a check or money order payable to the West Virginia office of health facility licensure and certification. The secretary shall not review incomplete forms; they shall be returned to the applicant. The applicant shall provide to the secretary a balance sheet showing all expenses and all income on forms provided by the secretary, including but not limited to, reimbursement of the owners, lease payment, and monthly rates charged. As mandated by W. Va. Code '16-5N-6(e), the applicant bears the cost of the initial licensure inspections or inspections for changes in licensed bed capacity. An applicant shall pay the fee to the West Virginia office of health facility licensure and certification before the issuance of an initial or amended license.

4.2.c. Applicants for initial licensure shall provide to the secretary a preliminary operating plan which shall include a proposed budget that projects monthly income, lease payment and reimbursement of the owners.

4.2.d. The applicant shall submit the application and fee at least ninety (90) days prior to the date proposed for commencement of operations.

4.2.e. Except as specified in subsection 4.11 of this rule, the secretary shall, after inspection, issue an initial license, if the applicant complies with this rule.

4.2.f. If any residents of a residential care community are to be moved to another location owned or operated by the same licensee, the licensee shall apply for a license for the new location at least ninety (90) days in advance of the move.

4.3. Waivers.

4.3.a. The secretary may waive a requirement of this rule if after a thorough investigation, the secretary determines that the waiver will not adversely affect the health, safety, welfare or rights of the residents.

4.3.b. In order to request a waiver, the licensee or resident shall submit a written request for the waiver at least thirty (30) days in advance of the date on which the waiver is requested to begin. The request shall:

4.3.b.1. Specify the specific requirement in this rule for which the waiver is requested;

4.3.b.2. Specify the time period for which the waiver is requested;

4.3.b.3. Include specific and detailed reasons for the request;

4.3.b.4. Explain why the specific requirement cannot be complied with; and

4.3.b.5. Document that there will be no adverse effect on resident health, safety, welfare, or rights if the waiver is granted.

4.4. License Renewal.

4.4.a. Applications for renewal of a license shall be postmarked or hand delivered to the secretary a minimum of ninety (90) days prior to the expiration date appearing on the currently held license.

4.4.b. Except as specified in subsection 4.11 of this rule, the secretary shall issue a renewal license when the following conditions are met:

4.4.b.1. The residential care community is found to be in substantial compliance with this rule;

4.4.b.2. The applicant has submitted a complete application and all requested documentation regarding financial capability and management of the residential care community; and

4.4.b.3. The residential care community has met all Class I standards as set forth in subsection 4.10 of this rule.

4.5. Provisional License.

4.5.a. The secretary may issue a provisional license when:

4.5.a.1. The residential care community has failed to meet all the requirements of W. Va. Code '16-5N-1 et seq., provided that care given in the residential care community is adequate for the residents= needs and the residential care community has demonstrated improvement and evidences potential for substantial compliance during the term or the provisional license; or

4.5.a.2. All requirements for renewal of a license are not met prior to the expiration of the previously issued license.

4.5.b. The secretary shall not issue a provisional license when the residential care community:

4.5.b.1. Is in violation of any Class I standard; or

4.5.b.2. Has a record of noncompliance with this rule.

4.5.c. The secretary shall not renew a provisional license.

4.5.d. The secretary shall determine the period of time for which a provisional license is issued. However, in no instance shall this period exceed one (1) year.

4.5.e. If the owner of a residential care community is denied a provisional license or a provisional license expires, the secretary shall treat a subsequent application for a license as application for an initial license and the owner shall meet the requirements for an initial license including the cost of an initial application fee and inspections as determined by the secretary.

4.6. Inspections.

4.6.a. The secretary shall inspect residential care communities as is necessary to carry out the intent of W. Va. Code '16-5N-1 et seq. and this rule.

4.6.b. The secretary has the right to enter, without prior notice, the premises of a residential care community, or any building for which there is reason to believe is being operated or maintained as a residential care community without license, to conduct inspections. If the owner or person in charge of the residential care community refuses entry, the secretary may apply to the circuit court in which the residential care community is located or the circuit court of Kanawha County for a warrant to authorize an inspection or to compel admittance to the premises of an unlicensed residential care community.

4.6.c. The secretary shall conduct at least one (1) inspection of a residential care community prior to issuance of an initial license. Inspections shall be conducted after the following conditions have been met:

4.6.c.1. The application and fee have been received and been determined to be complete;

4.6.c.2. All requested documentation verifies the readiness of the residential care community for an inspection;

4.6.c.3. Fees for the cost of inspections have been received by the secretary; and

4.6.c.4. Necessary inspections can be scheduled.

4.6.d. The secretary shall conduct periodic unannounced inspections to determine a residential care community's continued compliance with applicable statutes and rules.

4.6.e. The secretary shall prepare a written report of any inspection made pursuant to this rule within fifteen (15) days of the completion of the inspection and shall mail a copy to the licensee or administrator, as applicable, specifically listing any violation of this rule.

4.7. Complaint Investigation.

4.7.a. Any person may register a complaint with the secretary alleging a violation or violations of this rule by a residential care community or a facility alleged to be operating unlawfully as a residential care community. The complainant shall state the substance of the complaint and identify the residential care community by name and/or address.

4.7.b. The secretary may conduct investigations as necessary to determine the validity of the complaint and shall notify the licensee of the residential care community or the operator of a facility alleged to be operating unlawfully as a residential care community of the substance of the complaint at the time of the completion of any investigation.

4.7.c. The secretary shall notify the licensee of any corrective action required, the time frame for completion of the corrective action and any disciplinary action to be taken by the secretary.

4.7.d. The secretary shall keep the names of a complainant and of any resident named in the complaint confidential and shall not disclose the names to the public without written permission of the complainant and the resident and his or her legal representative, if any. The secretary shall delete the name of a complainant or resident named in a complaint or information contained in the report of an investigation which could reasonably identify the complainant or any resident, unless the resident gives written permission for the disclosure or there is clear and convincing evidence in a particular instance which requires disclosure of names.

4.7.e. If a complaint becomes the subject of a judicial proceeding, nothing in this rule shall be construed to prohibit the disclosure of information that would otherwise be disclosed in judicial proceedings.

4.7.f. Any type of discriminatory treatment of a resident by whom, or upon whose behalf, a complaint has been submitted to the secretary, within one hundred twenty (120) days of the filing of the complaint or the institution of such action, raises a rebuttable presumption that the discriminatory treatment action was taken by the licensee in retaliation for the complaint or action.

4.7.g. If, after an investigation, the secretary determines that the complaint has merit, he or she shall advise any injured party of the possibility of a civil remedy. In addition, residents, residents' families or legal representatives or ombudsmen may also independently pursue civil remedies for violations of this rule.

4.7.h. If a residential care community which is found to have violated one (1) or more requirements of this rule during a routine inspection, or a complaint or other investigation fails to correct the violations within one hundred twenty (120) days of the completion of the inspection or investigation, the secretary shall give written notice of the uncorrected violations and of the amount of time until the secretary will report^[2] the residential care community's lack of compliance with the rule to the Social Security Administration and to all residents, their families and any legal representatives. The secretary shall also provide all residents with a list^[3] of approved facilities and agencies to assist them in moving.

4.7.i. If a residential care community which is found to have violated one (1) or more requirements of this rule during a routine inspection or a complaint or other investigation fails to correct the violations within two hundred ten (210) days of the completion of the inspection or investigation, the secretary shall report^[4] the residential care community's lack of compliance with this rule to the Social Security Administration. The secretary shall also provide all residents, their families and any legal representatives with a list^[5] of approved facilities and agencies.

4.8. Plans of Correction.

4.8.a. The licensee of a residential care community found on the basis of inspection or other investigation to have violations of requirements in this rule shall develop a plan of correction which shall be signed and dated by the licensee and submitted to the secretary within fifteen (15) working days of receipt of the report of the inspection or other investigation.

4.8.b. The secretary shall require immediate correction in the case of a violation constituting immediate and serious threats to the health or safety of a resident or employee.

4.8.c. The plan of correction shall specify:

4.8.c.1. The violations to be corrected;

4.8.c.2. Action taken or proposed to correct the violations and procedures to prevent their recurrence; and

4.8.c.3. A calendar date by which the violations shall be corrected, which shall allow the shortest possible time in which the residential care community may reasonably be expected to correct the violation. A residential care community shall ordinarily be expected to comply with the rule within sixty (60) days of the inspection; however, the secretary may allow more time for certain types of deficiencies.

4.8.d. The plan of correction shall be approved, modified or rejected in whole or in part by the secretary in writing.

4.8.e. In modifying or rejecting a proposed plan of correction, the secretary shall state the reasons for the modification or rejection.

4.8.f. When the secretary rejects a plan of correction, the licensee has a reasonable amount of time, but no more than fifteen (15) working days, to submit a revised plan.

4.8.g. The secretary may conduct reasonable and necessary procedures, including a follow-up on-site inspection, to verify the correction of any violations identified during an inspection or any other investigation.

4.9. Release of Reports and Records.

4.9.a. The secretary, from the time of receipt, shall make available for public inspection, and upon request, provide copies of the following at a reasonable cost:

4.9.a.1. Information concerning and actual applications and exhibits;

4.9.a.2. Inspection reports;

4.9.a.3. Reports of the results of investigations conducted in response to complaints;

4.9.a.4. A current list of the names and addresses of residential care communities found to be in violation of this rule, including the details of each violation; and

4.9.a.5. Any other reports filed with or issued by the secretary pertaining to the compliance of a residential care community with applicable laws and rules.

4.9.b. The names of residents shall be kept confidential and shall not be disclosed without the resident's written permission or by order of court of record. Nothing contained in this rule shall be construed to require or permit the public disclosure of confidential medical, social, personal or financial records of any resident. Before releasing a report or record judged public information, the secretary shall delete any confidential information regarding a resident which would reasonably permit identification of the resident.

4.10. Classification of Standards.

4.10.a. In accordance with W. Va. Code '16-5N-5(c), a classification for each standard in this rule is established according to the following:

4.10.a.1. Class I standards are those the violation of which would present either an imminent danger to the health, safety or welfare of any resident or substantial probability that death or serious physical harm would result;

4.10.a.2. Class II standards are those the violation of which would have a direct or immediate relationship to the health, safety or welfare of any resident but which would not create imminent danger; and

4.10.a.3. Class III standards are those the violation of which would have an indirect or potential impact on the health, safety or welfare of any resident.

4.11. Non-Issuance of Initial or Renewal License.

4.11.a. The secretary may refuse to issue either an initial or a renewal license if he or she finds evidence of the following:

4.11.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;

4.11.a.2. Either the applicant or the administrator has been arrested for, adjudicated, and convicted of any felony or misdemeanor relevant to the provision of care in a health care facility or operating a health care facility;

4.11.a.3. The applicant 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;

4.11.a.4. The applicant 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;

4.11.a.5. The owner or person in charge of the residential care community has refused entry to the secretary's duly authorized representative for an inspection or survey;

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

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

4.11.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; or

4.11.a.9. In the instance of an application for a renewal license, the licensee has failed to correct a violation of any Class I standard or has failed to be in substantial compliance with the requirements of this rule.

4.11.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 licensee, residents, law enforcement officials, and other interested individuals.

W. Va. Code R. § 64-75-4