W. Va. Code R. § 21-1-6

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 21-1-6 - Suspension or Revocation, Hearing and Judicial Review

6.1. Suspension or revocation of licenses or permits.

6.1.a. The Board may, at any time upon its own motion, and shall, upon verified written complaint of any person, conduct an investigation to determine whether there are any grounds for the suspension or revocation of a license or permit issued pursuant to this rule.

6.1.b. The Board may suspend or revoke any license or permit when it finds the licensee or holder of a temporary permit has:

6.1.b.1. Obtained a license or permit by means of fraud or deceit;

6.1.b.2. Failed or refused to comply with the provisions of this rule or with the provisions of W.Va. Code § 16-5C-1et seq.; or

6.1.b.3. Failed or refused to comply with the expectations contained in the Code of Ethics.

6.1.c. When the Board suspends or revokes a license of a licensee, it shall notify the OHFLAC of its actions.

6.2. Complaints and hearing procedures.

6.2.a. Complaints.

6.2.a.1. Any person, public officer, association or the Board may register a complaint against any licensee, AIT or holder of an emergency or temporary permit for any of the reasons specified in section 6.1. of this rule. The complaint, submitted to the Board, shall be in writing.

6.2.a.2. When the Board receives a notice by the OHFLAC citing a Medicare/Medicaid certified nursing facility of providing substandard quality of care, the Board shall take immediate action in accordance with subdivision 6.2.a.3 of this subsection:

6.2.a.3. Substandard Quality of Care Policy.

6.2.a.3.A. As a result of the provisions of Section 1819 of the Social Security Act (42 U.S.C. § 1395i-3), state survey agencies, such as the DHHR and OHFLAC, are required to advise state boards responsible for licensing nursing home administrators when a Medicare/Medicaid certified nursing facility is cited for deficiencies which constitute substandard quality of care. Inasmuch as there are no further directives for interpretation as to how state licensing boards will manage such notifications, it is the prerogative of each state's board to define its policy, as provided in this subsection

6.2.a.3.B. It will be the policy of the West Virginia Nursing Home Administrators Licensing Board to pursue the following plan in discharging its duties:

6.2.a.3.C. Upon notification from OHFLAC, a certified letter will be sent to the administrator of record for the facility alleged to have offered substandard quality of care indicating the same and requesting a response from the administrator to each of the allegations. If the current administrator of record has been at the facility for less than one year, the previous administrator of record will also be contacted to address in writing each allegation of substandard quality of care. The administrator's reply must be postmarked no later than 30 days after receipt of the Board's letter.

6.2.a.3.D. Upon receipt of the response from the administrator and within 90 days of the day the Board receives notification from OHFLAC, under the direction of the chair of the West Virginia Nursing Home Administrators Licensing Board, an assessment by staff, members of the Board, and/or a representative from the Attorney General's Office will be made of all documents received (i.e., HCFA-2567 Statements of Deficiency and Plans of Correction, administrator's response, etc.). From that point, a brief written assessment of the facts will be made and filed with the chairman of the Board indicating whether or not it is believed nursing home administrator licensing regulations were violated. If the written assessment establishes that the nursing home administrators licensing regulations were violated, the chair of the Board will be responsible for seeing that an interview is scheduled with the administrator to assess his/her knowledge and soundness of judgment in being able to adequately discharge the functions of a nursing home administrator (NHA). If it is shown by a preponderance of the evidence that nursing home administrator licensure rules were violated, a written order with findings of fact and conclusions of law will be sent to the administrator with a copy filed in the person's record defining the course of action that will follow. Likewise, if it is shown by a preponderance of the evidence that there were no violations of nursing home administrator licensure rules, a letter will be sent to the administrator so advising with a copy of the correspondence to be retained in the licensee's file.

6.2.a.3.E. If there are grounds for potential action against a nursing home administrator for violation of nursing home administrator's licensure rules the Board shall follow the applicable procedures established in section 6.1 of this rule pertaining to suspension, revocation, hearing or judicial review. Final disposition of the review will be completed as quickly as possible but not to exceed 150 days from date of the first notification of substandard quality of care by the OHFLAC. Proceedings in regard to final disposition will be made in the record and retained in the Board's file for the NHA under review.

6.2.a.3.F. If within 24 months of first being advised by OHFLAC subsequent notice is received by the Nursing Home Administrators Licensing Board alleging substandard quality of care in a facility under the direction of the same licensed nursing home administrator; within the same time lines as previously described, at the direction of the chair of the Board, the Board will conduct a second interview on the issue of substandard quality of care. Facts from the first review will be revisited along with all new allegations of repeat deficiencies.

The Board will follow the process identified in paragraphs 6.2.a.3.c through 6.2.a.3.e. of this section with regard to the new allegations. Final disposition of the Board's action will be recorded and retained in appropriate NHA and/or board files.

6.2.a.3.G. From the time the West Virginia Nursing Home Administrators Licensing Board is first advised by OHFLAC of alleged substandard quality of care in a West Virginia licensed nursing facility, all correspondence and records pertinent to the administrator and/or administrators in question will be retained for 30 months. During this period if follow up reviews by OHFLAC do not result in subsequent referrals to the Nursing Home Administrators Licensing Board for matters of substandard quality of care, the Board, at its discretion, may order cases closed with files destroyed. If this occurs, such action will be considered at a duly called board meeting with the decision recorded in board minutes.

6.2.b. Preliminary hearings.

6.2.b.1. The Board, or any person or persons appointed by it, may hold a preliminary hearing to determine whether a formal hearing on the complaint is necessary. The Board shall give the person against whom the complaint has been registered, written notice of the date, time, and place of the preliminary hearing.

6.2.b.2. The Board may dismiss the complaint and take no action on the complaint, by formal hearing or otherwise. In that event, the Board shall file and make a part of its record the complaint and the order dismissing the complaint. If the Board does not dismiss the complaint, it shall hold a formal hearing in accordance with section 6.3 of this rule.

6.3. Procedures for hearing.

6.3.a. The Board may deny a license, renewal of a license or permit pursuant to W. Va. Code § 30-1-1et seq. and § 30-25-1et seq.

6.3.b. Whenever the Board denies an application for any original or renewal license or denies an application for an emergency permit it shall make and enter an order to that effect and serve a copy of the order on the applicant licensee, or permittee as the case may be, by certified mail, return receipt requested. If the applicant desires to challenge the Board's order denying the application, the applicant shall request a hearing. The request shall be made in writing to the Board within 20 days after receipt of the order.

6.3.c. Whenever the Board determines that there is probable cause to believe a permit holder or licensee has violated W. Va. Code §30-25-1 et seq. or any provision of this rule, the Board shall serve upon the licensee, by certified mail, return receipt requested, a copy of the notice of hearing. The notice of hearing shall provide the licensee with notice of the charges being brought against him or her.

6.3.d. All of the pertinent provisions of W. Va. Code § 29A-5-1et seq. and § 30-1-1et seq., apply to and govern the hearing and the administrative procedures in connection with and following the hearing.

6.3.e. Upon conclusion of the hearing, the Board may revoke the license of the licensee, or an emergency or temporary permit, or take other disciplinary action or dismiss the charges.

6.3.f. An order of suspension made by the Board may contain conditions regarding reinstatement of the license or permit.

6.3.g. The Board, in its discretion, may direct a rehearing or take additional evidence, and may rescind or affirm the prior order after the rehearing, but nothing in this section precludes appropriate relief under and pursuant to the laws providing for the review of an administrative determination by the courts of the state.

6.3.h. All disciplinary hearings shall be published within the Nursing Home Administrators Licensing Board website to allow the public communities, resident's families, and facility staff access to the date, time, and location of hearing.

6.3.i. The order of the Board is final unless reversed, vacated, or modified upon judicial review of the order in accordance with the provisions of section 6.4. of this rule.

6.4. Judicial review; Appeal to Supreme Court of Appeals.

6.4.a. Any person adversely affected by an order of the Board rendered after a hearing held in accordance with the provisions of section 6.3. of this rule, is entitled to judicial review of the decision. All of the pertinent provisions of W. Va. Code § 29A-5-1et seq. apply to and govern the judicial review.

6.4.b. The judgment of the Immediate Court of Appeals is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals, in accordance with the provisions of W. Va. Code § 29A-6-1et seq.

W. Va. Code R. § 21-1-6