West Virginia Code 16-5L-10 – Investigation of complaints

(a) Upon receipt of a complaint filed on behalf of a resident, or on his or her own initiative, a state or regional long-term care ombudsman shall investigate any act, practice, policy or procedure of any long-term care facility or government agency which affects the health, safety, welfare or rights of any resident.

Terms Used In West Virginia Code 16-5L-10

Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
Department: means the West Virginia Department of Health and Human Resources: Provided, That beginning January 1, 2024, as used in this chapter, "department" and "Department of Health and Human Resources" means the Department of Health. See West Virginia Code 16-1-2
Government agency: means any department, division, office, bureau, board, commission, council, authority, or any other agency or instrumentality created by the state or political subdivision thereof or to which the state is a party or by any county or municipality which is responsible for the regulation, visitation, inspection, or supervision of long-term care facilities or which provides services to residents or long-term care facilities. See West Virginia Code 16-5L-3
Long-term care facility: means any nursing home, personal care home, or residential board and care home as defined in section two, article five-c of this chapter. See West Virginia Code 16-5L-3
Regional long-term care ombudsman: means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the state commission on aging and meets the qualifications set forth in section seven of this article. See West Virginia Code 16-5L-3
Resident: means an individual living in a nursing home, personal care home, residential board and care home, or any long-term care facility as defined in subsection (b) of this section, or who has lived in such a setting, or who has made application to live in such a setting: Provided, That nothing in this article may be construed to give a long-term care ombudsman the right to obtain the waiting list of a long-term care facility. See West Virginia Code 16-5L-3
Secretary: means the secretary of the Department of Health and Human Resources: Provided, That beginning January 1, 2024, as used in this chapter, "secretary" means the secretary of the Department of Health. See West Virginia Code 16-1-2
State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
State long-term care ombudsman: means an individual who meets the qualifications of section five of this article and who is employed by the state commission on aging to implement the state long-term care ombudsman program as set forth in this article. See West Virginia Code 16-5L-3

(b) Investigative activities of the state or regional long-term care ombudsman shall include, but shall not be limited to: Information gathering, mediation, negotiation, informing parties of the status of the investigation, notification to any aggrieved party of alternative processes, reporting of suspected violations to a licensing or certifying agency, and the reporting of suspected criminal violations to the appropriate authorities.

(1) The complaint is trivial, frivolous, vexatious or not made in good faith;

(2) The complaint has been too long delayed to justify present investigation;

(3) The resources available, considering the established priorities, are insufficient for an adequate investigation;

(4) The matter complained of is not within the investigatory authority of the long-term care ombudsman program; or

(5) A real or apparent conflict of interest exists and no other ombudsman is available to investigate the complaint in an impartial manner.

If a determination is made by a regional long-term care ombudsman not to investigate any complaint, then the complaint shall be referred to the state long-term care ombudsman who shall make a final decision as to whether the matter warrants further investigation.

(d) State and regional long-term care ombudsmen may institute actions on behalf of residents to obtain injunctive and declaratory relief, but not damages. In order to enable ombudsman to bring such actions, the secretary of the Department of Health and Human Resources shall either:

(1) Establish an administrative hearing process under the procedures for contested cases defined at article five, chapter twenty-nine-a of this code to be available to any state or regional ombudsmen bringing an action on behalf of a resident against a long-term care facility or governmental agency; or

(2) Ensure that state and regional ombudsmen have sufficient access to legal counsel to bring actions on behalf of residents in civil court: Provided: That nothing in this subsection shall be construed to prevent a resident of a long-term care facility from filing directly, on his or her own behalf, a suit for relief of any sort in any state or federal court.

(e) The state commission on aging and other appropriate state governmental agencies shall establish and implement cooperative agreements for receiving, processing, responding to and resolving complaints involving state governmental agencies under the provisions of this section.

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