W. Va. Code R. § 64-2-4

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

Section 64-2-4 - State Administrative Procedures

4.1. General Licensing Provisions.

4.1.a. Before establishing, maintaining, offering, operating or advertising a medical adult day care center a person shall obtain a license authorizing the operation from the Secretary.

4.1.b. Each new applicant must be at least twenty-one years of age and must provide at least two letters of reference from reputable citizens with whom he or she is personally acquainted and who certify to his or her character and qualifications. If the applicant is an association, corporation or governmental unit, evidence shall be submitted to its members and the persons in charge.

4.1.c. A license is valid only for the person or organization and for the center named in the application and on the license, and is not transferable. After a license is issued, if there is any change in the name of the licensee or the name of the medical adult day care center, the licensee shall notify the Secretary immediately and no later than within fifteen (15) days.

4.1.d. If the licensee owns more than one medical adult day care center, each center shall have a separate license.

4.1.e. The words 'clinic," 'hospital," "residence" or any other words that suggest a type of facility other than a medical adult day care center may not be used in the name or the advertising of the center.

4.1.f. The licensee is responsible for compliance with this rule, the terms of the medical adult day care center's license, W. Va. Code § 16-5B-1 et seq., and other relevant federal, state, and local laws and agency policies and procedures.

4.1.g. The Secretary may issue an initial or a renewal license for a period not to exceed one year, unless if an applicant submits an application for renewal of a license currently in effect in accordance with this rule and W. Va. Code § 16-5B-1 et seq., together with the required fee. The license shall continue in effect until:

4.1.g.1. The thirtieth of June following the date of issuance unless continued pursuant to this rule and W. Va. Code §16-5B- et seq.;

4.1.g.2. The date of a revocation or suspension of the license pursuant to this rule and W. Va. Code § 16-5B-1 et seq., or

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

4.2. Initial Licensure Application.

4.2.a. An applicant for initial licensure shall submit a completed application to the office of health facility licensure and certification, along with a non refundable fee of one hundred (100) dollars and any additional information the Secretary may require.

4.2.b. The applicant shall have his or her notarized signature on the application. The signature shall serve as a release for obtaining references, credit and other background information.

4.2.c. The applicant shall provide to the Secretary a preliminary operating plan that includes a proposed budget with projected monthly income, a balance sheet showing all expenses and income on forms provided by the Secretary, including but not limited to, reimbursement of the owners, lease payment, and monthly fees charged. The Secretary shall determine the licensed capacity.

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

4.2.e. After a satisfactory inspection to ensure compliance with this rule, the Secretary shall issue an initial license.

4.2.f. An initial license shall not be issued under this rule for a project reviewable under W. Va. State Code §16-2D unless the state health planning and development agency has issued a finding, after a final conformance review, that the project conforms to the terms of the certificate of need decision issued for the project. Evidence of compliance shall be supplied with the licensure application.

4.3. License Renewal.

4.3.a. The licensee shall postmark or hand deliver applications for renewal of a license, along with a non-refundable fee of one hundred (100) dollars, to the Secretary at least ninety (90) days before the expiration date of the current license.

4.3.b. For an increase in the licensed capacity, the licensee shall obtain prior written approval of the Secretary. In addition to the renewal application, the applicant shall submit a plan of operation to the Secretary for approval, and the Secretary shall determine the increased licensed capacity.

4.3.c. Except as specified in Subsection 4.4. of this rule, the Secretary shall issue a renewal license to a medical adult day care center when the following conditions are met:

4.3.c.1. The center is found to be in substantial compliance with this rule; and

4.3.c.2. The applicant has submitted a completed application, applicable fee and all requested financial information.

4.4. Non-Issuance of Initial or Renewal License.

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

4.4.a.1. The applicant or licensee has a 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;

4.4.a.2. The applicant or licensee has a personal history that has evidence of abuse, fraud, or substantial and repeated violations of applicable laws and rules in the operation of any health care facility or service organization or in the care of dependent persons;

4.4.a.3. The applicant or licensee has a personal history that has evidence of a conviction of crimes related to the provision of care to a dependent population as a result of a criminal investigative background check by the West Virginia state police, through the central abuse registry or is listed on any abuse registry established by the state;

4.4.a.4. The applicant or licensee has been denied a license or has had a license to operate a health care facility or medical adult day care center revoked in West Virginia or any other jurisdiction during the previous five (5) years;

4.4.a.5. The applicant or 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 or medical adult day care center;

4.4.a.6. The applicant, licensee or person in charge of the center has refused the Secretary entry and access to participants and records for an inspection or survey;

4.4.a.7. The applicant or licensee has converted the property of a participant for his or her own use, or has secured property, or a bequest of property, from a participant by undue influence;

4.4.a.8. The applicant, licensee or director has submitted false information to the Secretary during the licensure process or during the course of an inspection or survey of the center;

4.4.a.9. The applicant or licensee has moved the medial adult day care program to another location owned or operated by the applicant or licensee without prior approval of the location by the Secretary;

4.4.a.10. The applicant or licensee has built or renovated a center without complying with the requirements of this rule;

4.4.a.11. The applicant or licensee has failed to be in substantial compliance with the requirements of this rule;

4.4.a.12. The center has failed to receive a recommendation for licensure from the state fire marshal; or

4.4.a.13. For a project reviewable under W. Va. State Code §16-2D, the center has failed to receive a finding by the state health planning and development agency that the project conforms to the terms of the certificate of need decision issued for the project.

4.5. Inspections.

4.5.a. The Secretary shall inspect a medical adult day care center as necessary to carry out the intent of W. Va. Code § 16-5B-1 et seq. and this rule.

4.5.b. The Secretary shall conduct at least one inspection of a center prior to issuing an initial license, but shall not conduct an inspection until after the following conditions are met:

4.5.b.1. The application and application fee have been received and the application has been determined to be complete; and

4.5.b.2. All requested documentation has verified the readiness of the center for an inspection.

4.5.c. The Secretary shall conduct periodic unannounced inspections at least once every twelve (12) months to determine the center's continued compliance with this rule.

4.5.d. The Secretary has the right to enter a structure that is believed to be operating or maintained as a medical adult day care center without a license to conduct inspections without prior notice. If the operator or person in charge of the suspected medical adult day care center refuses entry, the Secretary may apply to the circuit court in the county in which the suspected center is located or the circuit court of Kanawha County for a warrant to authorize an inspection or to compel admittance to the premises of the suspected center.

4.6. Complaint Investigation.

4.6.a. Any person may register a complaint with the Secretary alleging a violation of this rule by a medical adult day care center or an individual alleged to be unlawfully operating a medical adult day care center, by stating the complaint and identifying the name and address of the center.

4.6.b. The Secretary may conduct investigations as necessary to determine the validity of the complaint and shall notify the licensee of the center or the individual alleged to be operating an illegal medical adult day care center of the complaint at the time of the completion of an investigation.

4.6.c. The Secretary shall notify the licensee or the operator of a medical adult day care center of any corrective action required, the time frame for completion of the corrective action, and any disciplinary action to be taken by the Secretary.

4.6.d. Except as provided in Subdivision 4.6.e. of this subsection, the Secretary shall keep the names of a complainant and of any participant named in the complaint confidential and shall not disclose the names to the public without written or verbal permission of the complainant and the participant, and his or her legal representative, if any, unless there is an immediate risk to the participant. The Secretary shall delete the name of a complainant or participant named in a complaint or information contained in the report of an investigation that could reasonably identify the complainant or any participant. Information contained in any report of abuse, neglect, or an emergency situation made in accordance with W. Va. Code § 9-6-8 shall be confidential and shall not be released except as provided in that article.

4.6.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.

4.6.f. Any type of discriminatory treatment of a participant or employee by whom or on 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 the action, raises a rebuttal presumption that the discriminatory treatment action was taken by the licensee in retaliation for the complaint or action.

4.6.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, participants, a participant's family, or a legal representative or advocate, may also independently pursue civil remedies for violations of this rule.

4.7. Waivers.

4.7.a. The Secretary may waive a requirement of this rule if after a thorough investigation, he or she determines that the waiver will not adversely affect the health, safety, welfare or rights of the participants.

4.7.b. The licensee shall submit a completed waiver form to the Office of Health Facilities Licensure and Certification.

4.8. Reports and Records.

4.8.a. The Secretary shall prepare a written report of any inspection or investigation made pursuant to this rule within fifteen (15) days of the completion of the inspection and shall transmit to the licensee or director, as applicable, a statement of deficiencies that contain the violations of this rule.

4.8.b. The names of participants shall be kept confidential and shall not be disclosed without the participant's written permission or by order of a 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 participant. Before releasing a report or record judged public information, the Secretary shall delete any information regarding a participant that would reasonably permit identification of the participant.

4.8.c. The Secretary shall make copies of the following available at a reasonable cost for public inspection and upon request:

4.8.c.1. Applications and exhibits;

4.8.c.2. Inspection reports; and

4.8.c.3. Reports of the results of investigations conducted in response to complaints.

4.9. Plans of Correction.

4.9.a. The licensee of a medical adult day care center, found on the basis of inspection or other investigation to have violations of requirements in this rule, shall develop, sign and date a plan of correction, and submit it to the Secretary within fifteen (15) working days of receipt of the statement of deficiencies.

4.9.b. The Secretary shall require immediate correction of violations identified as constituting immediate and serious threats to the health or safety of a participant or employee.

4.9.c. For deficiencies other than those constituting immediate and serious threats, the licensee shall comply with the rule within sixty (60) days of the inspection, unless the Secretary waives this requirement and allows more time to correct certain types of deficiencies.

4.9.d. The plan of correction shall specify:

4.9.d.1. The violations to be corrected;

4.9.d.2. The actions taken or proposed to correct the violations and procedures to prevent their recurrence; and

4.9.d.3. The dates on which each violation is corrected or by which each will be corrected, that allows the shortest possible time to reasonably correct each specific violation.

4.9.e. The Secretary shall notify the licensee in writing of his or her approval, suggested modifications or rejection of the plan of correction, or any part of the plan.

4.9.f. If modifying or rejecting the proposed plan of correction, the Secretary shall state the reasons for the modification or rejection.

4.9.g. If the Secretary rejects the plan of correction, the licensee has up to fifteen (15) working days from the receipt of the Secretary's rejection to submit a revised plan.

4.9.h. The Secretary may conduct a follow-up on-site inspection to verify the correction of any violations identified during an inspection or any other investigation.

W. Va. Code R. § 64-2-4