Current through Register Vol. XLI, No. 45, November 8, 2024
Section 69-2-7 - Violations and Show Cause Proceedings; Penalties7.1. In the event that any health care provider or other legal entity violates any provision of the Act, of this rule, of any other rule duly promulgated by the Secretary under the provisions of the Act, or any plan, order, or directive issued under the provisions of the Act or any such rule, then the Secretary may assess a civil penalty as provided by the Act and may order that the health care provider by removed from any list of approved providers for whose services a department or division may pay in the future.7.2. Upon determining that there is probable cause to believe that a health care provider or other legal entity may be knowingly engaging in such a violation, the Secretary shall provide such health care provider or other legal entity with written notice which shall state the nature of the alleged violation and the time and place of a hearing at which such health care provider or other legal entity shall appear to show cause why a civil penalty or removal from any list, or both, should not be imposed. Nothing in this rule shall limit the Secretary's authority to resolve informally any alleged violation, by such means as stipulation, agreed settlement, consent order, default, or other appropriate action. 7.3. At the hearing, the Secretary shall arrange to have the evidence in support of the allegations presented and shall afford the health care provider or other legal entity an opportunity to cross-examine the state's witnesses and shall afford the health care provider or other legal entity an opportunity to present testimony and enter evidence in support of its position. The State shall bear the burden of proving a violation of the Act.7.4. The hearing shall be conducted in accordance with the administrative hearings provisions of W. Va. § 29A-5-1 et seq., and applicable procedural rules promulgated by the Secretary.7.5. If, after reviewing the record of such hearing, the Secretary determines, by a preponderance of the evidence, that such health care provider is in violation of the Act, of this rule, or any other rule promulgated under the Act, or any plan, order or directive issued under the Act or such rule, the Secretary may assess a civil penalty as provided by the Act and may remove a health care provider from any list of approved providers for whose services a department of division may pay in the future. In exercising his or her discretion in fixing the amount of the penalty as well as determining whether to remove a health care provider from a list, the Secretary shall take into account the degree of willfulness shown in the violation, the nature and type of the violation, the monetary amount involved and whether the health care provider or other legal entity had personally gained by the violation, the degree of harm, if any, suffered by a beneficiary of any state supported program due to the violation, and such other factors as may be relevant to a particular case.7.6. Any health care provider or other legal entity proceeded against under this section 7 shall receive notice in writing by certified mail of the Secretary's decision, which decision shall contain a statement of the penalty imposed, if any, whether the health care provider is to be removed from any applicable list and the Secretary's findings of fact and conclusions of law in support of the exercise of Secretary's discretion in the manner stated. The penalty and the removal may be imposed immediately by the Secretary without regard to whether or not an appeal is filed: Provided, that the Secretary, in his or her discretion, may grant a stay of enforcement or collection of the penalty or removal pending the resolution of an appeal.7.7. As provided for by W. Va. Code, § 16-29D-8, the health care provider or other legal entity may appeal the Secretary's decision. Any appeal shall be taken and be handled in accordance with W. Va. Code, '29A-5-4. The circuit court's review shall include a review of the amount of the penalty and any removal of a health care provider from a department's or division's approved provider list. The circuit court may enter a stay against the collection or enforcement of any penalty or removal order after a hearing on the request for stay: Provided, that such hearing may not be conducted on an ex parte basis.7.8. If the health care provider or other legal entity penalized or ordered removed from a department's or division's approved provider list either loses an appeal or does not appeal such penalties or removal and fails to pay the amount of the penalty to the Secretary within thirty days or if the health care provider continues to act in a manner contrary to his or her or its removal, the Attorney General may institute a civil action in the circuit court of Kanawha County to recover the amount of the penalty or to seek an injunction. Such civil action shall be handled in an expedited manner by the circuit court and shall be assigned for hearing at the earliest possible date.7.9. The remedies set forth in this section are intended only for violations of the Act and shall not affect any other contractual relationship between any department or division and a health care provider or other legal entity. 7.10. Any health care provider removed from a department's or division's approved provider list pursuant to this section 7 may petition the Secretary for reinstatement to such list after one-hundred and eighty (180) days from his removal. Any appeal by the provider of the Secretary's decision shall be taken and handled in accordance with W. Va. Code, § 29A-5-4.7.11. Any patient-identifying information or records obtained by the Secretary or his or her employees or agents, or by any other department or division subject to the Act, during any investigation or enforcement of the Act, this rule, or any other rule duly promulgated by the Secretary under the provisions of the Act, shall be kept confidential and, shall not be released to the public, and shall be treated in accordance with all applicable privacy laws.