W. Va. Code R. § 64-99-4

Current through Register Vol. XLI, No. 44, November 1, 2024

Section 64-99-4 - State Administrative Procedures

4.1. General Licensure Provisions.

4.1.a. A corporation may not be appointed to serve as conservator, limited conservator or standby conservator for a protected person unless the corporation first obtains a license.

4.1.b. A license is valid only for the corporation named in the license and is not transferable or assignable.

4.1.c. A licensed corporation shall notify the Secretary ninety days in advance of any pending merger or consolidation with another corporation, submitting with the notification a copy of the plan for merger or consolidation.

4.1.d. In the event that the surviving or the new corporation proposes to continue as conservator, limited conservator or standby conservator to any of the protected persons of the licensed corporation, the incorporators of the proposed corporation shall prepare an application as for an initial license, supplying relevant information or documentation of intent where official documents are unavailable. The official documents, such as a copy of the corporation charter shall be filed with Secretary immediately upon receipt. The new or surviving corporation, shall upon the granting of the new license, file notice with the circuit clerk of the continuation of all existing conservatorships, limited conservatorships and temporary conservatorships.

4.1.e. In the event that the new corporation does not propose, is not granted a license, or is not approved by the circuit court to continue as conservator, limited conservator or temporary conservator, the licensed corporation shall dissolve itself from its conservatorships according to law, this rule and the procedures of the corporation as approved by the Secretary.

4.1.f. A corporation shall notify the Secretary in advance of any proposed amendment to its articles of incorporation, requesting a decision from the Secretary as to whether the proposed amendment will affect the status of its license. In the event that the proposed amendment will adversely affect the status of the license, the corporation shall either:

(a) abandon the proposed amendment and any proposals for associated activity; or

(b) if the amendment is adopted, dissolve itself from its conservatorships according to law, this rule and the procedures of the corporation as approved by the Secretary.

4.1.g. The corporation shall notify the Secretary of any changes in the ownership and management of the corporation specified in Subdivision 4.2.c of this rule within thirty days following the change.

4.1.h. A corporation shall surrender an expired or otherwise invalid license shall be surrendered to the director on written demand.

4.1.i. A license shall state the name of the nonprofit corporation, the type of license, the date of issue, and the date of expiration of the license.

4.2. Initial License.

4.2.a. An applicant shall submit an application to the Secretary on forms provided by the Secretary not less than thirty days and not more than ninety days prior to the date proposed for commencement of operation. A nonrefundable fee of $100.00 shall be submitted with the application.

4.2.b. Information required for the initial license and any renewal may include affirmative evidence of ability to comply with this rule and with any other requirement of law, and shall include, at the lease, information showing that the corporation:

4.2.b.1. Has sufficient fiscal and administrative resources to perform the fiduciary duties and make the reports and accounting required by Chapter 44A of the West Virginia Code;

4.2.b.2. Will respect and maintain the dignity and privacy of the protected person;

4.2.b.3. Will protect and advocate the legal human rights of the protected person;

4.2.b.4. Will assure that the protected person is receiving appropriate education, vocational, residential and medical services in the setting least restrictive of the individual's personal liberty;

4.2.b.5. Will encourage the protected person to participate to the maximum extent of his or her abilities in all decisions affecting him or her and to act in his or her own behalf on all matters in which he or she is able to do so;

4.2.b.6. Does not provide education, vocation, residential or medical services to the protected person; and

4.2.b.7. Has written provisions in effect for the distribution of assets and for the appointment of temporary conservators for any protected persons it serves in the event the corporation ceases to be licensed by the Department or otherwise becomes unable to serve.

4.2.c. The applicant shall submit the following information pertaining to ownership and management of the corporation to the Secretary:

(a) the names, addresses and place of employment of all officers and directors of the corporation;

(b) the name and address of the individual to receive notices and orders;

(c) the address of the principal office of the corporation;

(d) the names and addresses of all other offices or locations of the corporation where activities related to the conservatorship services are performed; and

(e) the name and address of any parent or subsidiary corporation and the names and addresses of its officers and directors.

4.2.d. The application shall include a copy of:

(a) the articles of incorporation filed with the West Virginia Secretary of State;

(b) a copy of the corporate charter issued by the Secretary of State;

(c) the ruling or determination of the federal government regarding the corporation's status as a tax-exempt nonprofit corporation under federal income tax statutes and regulations; and

(d) the letter of approval for nonprofit status under the tax laws of West Virginia issued by the State Tax Commissioner.

4.2.e. The Secretary shall issue an initial license if he or she finds that:

(a) the corporation is in conformance with or, in the case of proposed activities, supplies satisfactory evidence of ability and intent to conform to this rule and with applicable lawand

(b) has submitted a complete application and the application fee. Within sixty days of the issuance of an initial license the applicant shall provide proof of liability insurance to the Secretary and the proof shall be maintained in the records of the Secretary relating to that license.

4.2.f. The Secretary shall issue an initial license, which shall be valid for a term of two years from the date of issuance, subject to the conditions and penalties specified in this rule.

4.3. Renewal License.

4.3.a. An applicant for a renewal license shall submit an application to the Secretary on forms provided by the Secretary not less than thirty days and not more than sixty days prior to the expiration date of the current license. A nonrefundable fee of one hundred dollars shall be included with the application.

4.3.b. The Secretary shall issue a renewal license when he or she finds that:

(a) the corporation is in compliance with the provisions of this rule and with applicable lawand

(b) the corporation has submitted a complete application and the renewal license fee.

4.3.c. The Secretary shall issue a renewal license, which shall be valid for a term of two years from the date of issuance, subject to the conditions and penalties specified in this rule.

4.4. Provisional License.

4.4.a. If the Secretary finds that a corporation applying for a renewal license is not in compliance with the requirements of this rule, he or she may issue a provisional license.

4.4.b. A provisional license may be issued only when the corporation has demonstrated improvement in deficiencies and the potential for compliance within the term for which the provisional license is issued.

4.4.c. The term of a provisional license is at the discretion of the Secretary, but in no case may be longer than twelve months.

4.4.d. A provisional license may not be renewed.

4.5. Inspections.

4.5.a. The Secretary shall conduct at least one on-site survey of the corporation and its activities biennially. The surveys shall include one or more of the locations from which the corporation provides services. Surveys shall include inspections of individual protected person conservatorship and financial records and corporation records required by law and this rule. Surveys may include visits and interviews with clients, employees, contractors for services and other persons as relevant. In the event that materials of record qualify as privileged attorney-client information, the corporation shall make available to the Secretary for inspection that information of record not related to the matter under attorney-client privilege.

4.5.b. The Secretary shall send a report of any initial or renewal license inspection of the corporation within fifteen working days of the completion of the inspection.

4.6. Complaint Investigation.

4.6.a. Any person may register a complaint with the Secretary alleging violation of applicable laws or rules by the corporation. A complaint shall state the substance of the complaint and the corporation by name.

4.6.b. The Secretary shall conduct an investigation of the complaint and shall prepare a report of his or her investigation.

4.6.c. Within ten working days after the completion of its investigation, the Secretary shall notify the corporation and the circuit court which appointed the conservator of the complaint, the results of its investigation and any corrective action required to be taken by the corporation.

4.7. Plans of Correction.

4.7.a. A corporation found on the basis of inspection or other investigation to have deficiencies in compliance with this rule shall develop a plan for correction of the deficiencies and shall submit the plan to the Secretary within thirty days of receipt of the report of the inspection or other investigation.

4.7.b. The plan of correction shall specify:

4.7.b.1. The deficiencies to be corrected;

4.7.b.2. Action taken or proposed to correct the deficiencies and procedures proposed to prevent their recurrence;

4.7.b.3. The time within which the deficiencies will be corrected. That time shall be the shortest possible time within which a corporation may reasonably be expected to correct the deficiencies.

4.7.c. The Secretary shall approve, modify or reject in whole or in part the plan of correction in writing within ten working days of receipt.

4.7.d. In accepting, modifying or rejecting the plan for correction, the Secretary shall consider:

4.7.d.1. The adequacy of the actions and procedures taken or proposed to correct the deficiencies;

4.7.d.2. The seriousness of the deficiencies;

4.7.d.3. The number of protected persons affected;

4.7.d.4. The time proposed for effectuating the correction; and

4.7.d.5. Any other relevant factors.

4.7.e. The Secretary shall specifically state the reasons for modifying or rejecting a proposed plan of correction.

4.7.f. When the Secretary rejects a plan of correction, a reasonable time for submission of a revised plan shall be allowed: Provided, that the Secretary may require an immediate correction of deficiencies that present a danger of immediate risk of loss to the estate of a protected person.

4.7.g. The Secretary shall conduct any reasonable and necessary procedures to ensure the correction of any deficiencies identified during a routine licensure inspection or any other investigation.

4.8. Secretary Reports and Records.

4.8.a. A report of any inspection or investigation made by the Secretary shall be in writing and shall be on file with the Secretary.

4.8.b. Reports of the Secretary of any inspection or investigation shall, when appropriate, specify the nature of any deficiency in compliance with this rule or law and specifically indicate the rule or law violated.

4.8.c. The Secretary shall make available for public inspection the following:

4.8.c.1. Applications and exhibits;

4.8.c.2. Inspection reports;

4.8.c.3. Reports of any other investigations;

4.8.c.4. Any records of hearings, decisions and declaratory rulings; and

4.8.c.5. Any responses of the corporation requested to be made part of the public record.

4.8.d. The Secretary shall provide copies of materials available for public information at a nominal cost upon written request.

4.8.e. The Secretary shall treat a report of inspection of a corporation as public information from the time a written plan of correction is submitted.

4.8.f. If the corporation does not submit a written plan of correction within the time specified by the Secretary or this rule, reports pertaining to the corporation shall be made public at the expiration of the specified time.

4.8.g. Before releasing a report or record considered public information, the Secretary shall delete any confidential information regarding a protected person which could reasonably permit identification of the protected person.

4.8.h. The Secretary shall delete from complaints made available to the public under this section any information required to be held confidential under this rule or state or federal law.

W. Va. Code R. § 64-99-4