W. Va. Code R. § 69-12-31

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 69-12-31 - Penalties and Equitable Relief

31.1. Grounds for Penalties and Injunctions.

31.1.1. Any person, partnership, association, or corporation which establishes, conducts, manages, or operates an OBMAT program without first obtaining a registration therefore or which violates any provisions of this law or rule shall be assessed a civil money penalty by the Secretary in accordance with this rule.

31.1.2. Each day of continuing violation after notification of the infraction shall be considered a separate violation.

31.1.3. If the OBMAT program fails to timely file reports required by section 13 of tis rule, the Secretary may impose a civil monetary penalty not to exceed $1,000 per day.

31.1.4. If the OBMAT program's owner or owners, medical director, and administrator knowingly and intentionally misrepresents actions taken to correct a violation, the Secretary may impose a civil money penalty not to exceed $10,000 and revoke or deny the OBMAT program's registration.

31.1.5. If an owner or owners or medical director of an OBMAT program concurrently operates an unregistered OBMAT program, the Secretary may impose a civil money penalty upon the owner or owners or medical director, or both, not to exceed $5,000 per day.

31.1.6. If the owner of an OBMAT program that requires a registration under this article fails to apply for a new registration for the program upon a change of ownership and operates the program under the new ownership, the Secretary may impose a civil money penalty not to exceed $5,000.

31.1.7. If a program physician knowingly operates, owns or manages an unregistered OBMAT program that is required to be registered pursuant to this article; knowingly prescribes or dispenses or causes to be prescribed or dispensed, controlled substances in an unregistered OBMAT program that is required to be registered; or obtains a registration to operate an OBMAT program through misrepresentation or fraud; procures or attempts to procure a registration for an OBMAT program for any other person by making or causing to be made any false representation, the Secretary may assess a civil money penalty of not more than $20,000. The penalty may be in addition to or in lieu of any other action that may be taken by the Secretary or any other board, court or entity.

31.2. The Secretary may deny an OBMAT program's application for registration or application for renewal registration; revoke or suspend a registration; order an admissions ban or reduction in patient census for one or more of the following reasons:

31.2.1. The Secretary makes a determination that fraud or other illegal action has been committed;

31.2.2. The program has violated federal, state, or local law relating to building, health, fire protection, safety, sanitation, or zoning;

31.2.3. The program conducts practices that jeopardize the health, safety, welfare, or clinical treatment of a patient;

31.2.4. The program has failed or refused to submit reports, comply with the documentation requirements of this rule, or make records available as requested by the Secretary or his or her designee; or

31.2.5. A program has refused to provide access to its location or records as requested by the Secretary, or his or her designee.

31.3. Notwithstanding the existence or pursuit of any other remedy, the Secretary may, in the manner provided by law, maintain an action in the name of the State for an injunction against any person, partnership, association or corporation to restrain or prevent the establishment, conduct, management, or operation of any OBMAT program or violation of any provisions of this rule without first obtaining a registration therefore in the manner hereinbefore provided.

31.3.1. The Secretary may also seek injunctive relief if the establishment, conduct, management, or operation of any OBMAT program, whether registered or not, jeopardizes the health, safety, or welfare of any or all of its patients.

31.3.2. In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the Secretary shall consider the following factors:

31.3.2.a. The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient has resulted, or could have resulted, from the OBMAT program's actions or the actions of the medical director or any treating physician employed by or associated with the program, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.

31.3.2.b. What actions, if any, the medical director or treating physician took to correct the violations;

31.3.2.c. Whether there were any previous violations at the OBMAT program; and

31.3.2.d. The financial benefits that the OBMAT program derived from committing or continuing to commit the violation.

31.4. Upon finding that a physician has violated the provisions of this rule, the Secretary shall provide notice of the violation to the applicable professional licensing board.

W. Va. Code R. § 69-12-31