West Virginia Code 16-5D-10 – Reports of inspections; plans of correction; assessment of penalties and use of funds derived therefrom; hearings
(a) Reports of all inspections made pursuant to § 16-5D-9 of this code will be in writing and will list all deficiencies in the assisted living residence’s compliance with the provisions of this article and the rules adopted by the secretary hereunder. The director will send a copy of the report to the assisted living residence by physical or electronic method with verifiable delivery, and will specify a time within which the assisted living residence shall submit a plan for correction of deficiencies, which plan will be approved, rejected, or modified by the secretary. The inspectors will allow audio taping of the exit conference for licensure inspections with all costs directly associated with the taping to be paid by the assisted living residence, provided that an original tape is provided to inspectors at the end of taping.
Terms Used In West Virginia Code 16-5D-10
- Affirmed: In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Assisted living residence: means any living facility, residence, or place of accommodation, however named, available for four or more residents, in this state which is advertised, offered, maintained, or operated by the ownership or management, whether for a consideration or not, for the express or implied purpose of having personal assistance or supervision, or both, provided to any residents therein who are dependent upon the services of others by reason of physical or mental impairment and who may also require nursing care at a level that is not greater than limited and intermittent nursing care: Provided, That the care or treatment in a household, whether for compensation or not, of any person related by blood or marriage, within the degree of consanguinity of second cousin to the head of the household, or his or her spouse, may not be deemed to constitute an assisted living residence within the meaning of this article. See West Virginia Code 16-5D-2
- board: means a board of health serving one or more counties or one or more municipalities or a combination thereof. See West Virginia Code 16-1-2
- Deficiency: means a statement of the rule and the fact that compliance has not been established and the reasons therefor. See West Virginia Code 16-5D-2
- Director: means the Director of the Office of Health Facility Licensure and Certification within the Office of the Inspector General. See West Virginia Code 16-5D-2
- in writing: includes any representation of words, letters, or figures, whether by printing, engraving, writing, or otherwise. See West Virginia Code 2-2-10
- Resident: means an individual living in an assisted living residence for the purpose of receiving personal assistance or limited and intermittent nursing services. See West Virginia Code 16-5D-2
- Secretary: means the secretary of the state Department of Health and Human Resources or his or her designee. See West Virginia Code 16-5D-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
(b) Upon an assisted living residence’s failure to submit a plan of correction which is approved by the secretary, or to correct any deficiency within the time specified in an approved plan of correction, the secretary may assess civil penalties as hereinafter provided or may initiate any other legal or disciplinary action as provided by this article.
(c) Nothing in this section may be construed to prohibit the secretary from enforcing a rule, administratively or in court, without first affording formal opportunity to make correction under this section, where, in the opinion of the secretary, the violation of the rule jeopardizes the health or safety of residents or where the violation of the rule is the second or subsequent violation occurring during a period of 12 full months.
(d) Civil penalties assessed against assisted living residences will be classified according to the nature of the violation as defined in §16-5D-5(c) of this code and rules promulgated thereunder by the secretary, as follows: For each violation of a Class I standard, a civil penalty of not less than $50 nor more than $500 will be imposed; for each violation of a Class II standard, a civil penalty of not less than $25 nor more than $50 will be imposed; for each violation of a Class III standard, a civil penalty of not less than $10 nor more than $25 will be imposed. Each day a violation continues, after the date of citation, shall constitute a separate violation. The date of citation is the date the facility receives the written statement of deficiencies.
(e) The secretary will assess a civil penalty not to exceed $2,000 against any individual who notifies, or causes to be notified, an assisted living residence of the time or date on which an inspection is scheduled to be conducted under this article.
(f) If the secretary assesses a penalty under this section, the secretary will cause delivery of notice of the penalty by personal service or by certified mail. The notice will state the amount of the penalty, the action or circumstance for which the penalty is assessed, the requirement that the action or circumstance violates, and the basis upon which the secretary assessed the penalty and selected the amount of the penalty.
(g) The secretary will, in a civil judicial proceeding, recover any unpaid assessment which has not been contested under § 16-5D-12 of this code within 30 days of receipt of notice of the assessment or which has been affirmed under the provisions of that section and not appealed within 30 days of receipt of the Board of Review’s final order or which has been affirmed on judicial review, as provided in § 16-5D-13 of this code. All money collected by assessments of civil penalties or interest will be paid into a special resident benefit account and will be applied by the secretary only for the protection of the health or property of residents of assisted living residences operated within the state that the secretary finds to be deficient, including payment for the costs of relocation of residents to other facilities, operation of an assisted living residence pending correction of deficiencies, or closure and reimbursement of residents for personal funds lost.
(h) The opportunity for a hearing on an action taken under this section shall be as provided in § 16-5D-12 of this code. In addition to any other rights of appeal conferred upon an assisted living residence pursuant to this section, an assisted living residence shall have the right to request a hearing and seek judicial review pursuant to §16-5D-12 and § 16-5D-13 of this code to contest the citing by the secretary of a deficiency on an inspection report, irrespective of whether the deficiency results in the imposition of a civil penalty.