W. Va. Code R. § 78-3-4

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

Section 78-3-4 - State Administrative Procedures

4.1. General Licensure Provisions.

4.1.1. Before establishing, operating, maintaining, or advertising a residential child care and treatment program within the State of West Virginia, an organization shall first obtain from the Secretary a license authorizing the operation.

4.1.2. A license is valid for the organization named in the application and is not transferable.

4.1.3. The organization shall surrender an invalid license to the Secretary on written demand.

4.1.4. Applications for licenses or approvals are made on forms prescribed by the Secretary.

4.1.5. The organization shall apply for a new license when the ownership of an organization changes. The new owner may not operate until a license is issued.

4.1.6. An organization shall demonstrate a need for the proposed service by obtaining a current certificate of need from the Health Care Authority.

4.1.7. The Secretary shall make a decision on each application within 60 days of its receipt and shall provide to unsuccessful applicants written reasons for the decision.

4.1.8. The Secretary shall perform an on-site inspection prior to issuing initial, renewal or provisional licenses.

4.2. License Application.

4.2.1. The organization shall submit an application for a license or certificate of approval for:

4.2.1.a. Establishment of a new facility;

4.2.1.b. A change in location;

4.2.1.c. A change in ownership;

4.2.1.d. A change in the population served, including but not limited to gender, age, and capacity;

4.2.1.e. Upon expiration of existing license; or

4.2.1.f. A significant change in services provided.

4.2.2. The organization shall submit the completed application at least 60 days in advance of the planned opening date, change of location, change of ownership, change in program or expiration of existing license.

4.2.3. The organization shall provide all required information, or the application is invalid.

4.2.4. The application shall be accompanied by supporting documentation.

4.2.5. A member of the governing body and the administrator shall sign the application. In appropriate instances, this may be the same person.

4.2.6. The application shall be accompanied by a current fire inspection report by the State Fire Marshal's Office and a current food service and environmental inspection by the local health department.

4.2.7. The governing body or its designated authority shall ensure adequate resources to support the organization's services. If a new organization or an expansion of an existing organization, the governing body shall demonstrate sufficient operating funds for at least six months. The demonstration may include reserves, lines of credit or history of adequate cash flow from an existing program to support a new program for six months.

4.2.8. Existing organizations shall demonstrate financial stability. The organization shall submit a statement from an independent certified public accountant that proper accounting procedures, including an annual audit from a CPA, are in place for the organization.

4.3. Types of Licenses.

4.3.1. Following application review, on-site inspection and approved corrective action, if necessary, and if there is compliance with the requirements of this rule, the Secretary shall issue a license in one of three categories. A license may be amended at any time during the cycle to reflect changes in the program, structure, or population.

4.3.2. The Secretary shall issue an initial license to organizations establishing a new service found to be in compliance with regard to policy, procedure, organization, record keeping and service environment rules. The initial license shall expire not more than 6 months from date of issuance and may not be re-issued pursuant to W. Va. Code § 49-2-115.

4.3.3. The Secretary shall issue a provisional license to an organization seeking to renew a previously issued license that is not in substantial compliance with this rule. The non-compliant organization must not, however, pose a significant risk to the rights, well-being, health, and safety of a child.

4.3.4. The Secretary shall issue a regular license to organizations complying with this rule. A regular license may be issued of any duration up to two years at the discretion of the Secretary pursuant to W. Va. Code § 49-2-115.

4.4. Construction and Renovation.

4.4.1. Before construction or extensive renovation of children's living areas begins, an organization shall submit to the Secretary for approval a copy of the site drawings and specifications for the architectural structure and mechanical work.

4.4.2. All extensively renovated and new structures shall comply with current standards of the Americans with Disabilities Act.

4.4.3. The Secretary may provide consultation and technical assistance in obtaining compliance with this rule.

4.5. Inspections.

4.5.1. An organization shall permit the Secretary unrestricted access to the facility to conduct announced and unannounced inspections of all aspects of its operation and premises.

4.5.2. An organization shall permit review of the organization's case records, corporate and financial records, board minutes and employment records as requested by the Secretary.

4.5.3. An organization shall permit access to employees, members of the governing board and children receiving services from the organization as requested by the Secretary.

4.5.4. If an organization is accredited by an accreditation body, it shall supply copies of all relevant accreditation reports to the regulatory body within 10 days of receipt.

4.5.5. The Secretary shall inspect a licensed organization 30 to 90 days prior to the expiration of its license.

4.5.6. The Secretary shall deliver a written report to the organization within 10 working days of completion of an inspection.

4.6. Complaint Investigation.

4.6.1. Any person may file a complaint with the Secretary alleging violation of applicable laws or rules by an organization. A complaint shall state the nature of the complaint and the organization by name.

4.6.2. The Secretary may conduct unannounced inspections of organizations involved in a complaint and any other investigations necessary to determine the validity of a complaint.

4.6.3. At the time of the investigation, the investigator shall notify the administrative officer of the alleged reason for the complaint.

4.6.4. The Secretary shall provide to the organization a written report of the results of the investigation along with any violations.

4.6.5. The Secretary may provide to the complainant a description of the corrective action the organization is required to take and of any disciplinary action the Secretary may take.

4.6.6. The Secretary shall keep the names of a complainant and of any child involved in the complaint or investigation and any information that could reasonably lead to their identification confidential.

4.6.7. If a complaint becomes the subject of a judicial proceeding, nothing in this rule prohibits the disclosure of information that would otherwise be disclosed in judicial proceedings.

4.6.8. The organization shall not discharge or discriminate in any way against a child or guardian, or employee who has been a complainant, on whose behalf a complaint has been submitted, or who has participated in an investigation process.

4.7. Reports and Records.

4.7.1. The Secretary shall keep on file a report of any inspection or investigation.

4.7.2. The report shall specify the areas of non-compliance with the rule it violates, and describe the precise data, observation, or interview to support the deficiency.

4.7.3. Information in reports or records is available to the public except:

4.7.3.a. As specified in this section regarding complaint investigations;

4.7.3.b. Information of a personal nature from a child or employee's file; and

4.7.3.c. Information required to be kept confidential by state or federal law.

4.7.4. The Secretary shall not make a report public until the organization has the opportunity to review the report and submit a Corrective Action Plan, if necessary.

4.8. Corrective Action Plans.

4.8.1. Within 10 working days after receipt of the licensing report, the organization shall submit to the Secretary for approval a written plan to correct all areas of non-compliance that are in violation of this rule. The plan shall specify:

4.8.1.a. Any action taken or procedures proposed to correct the areas of non-compliance and prevent their reoccurrence;

4.8.1.b. The date or projected date of completion of each action taken or to be taken; and

4.8.1.c. The signature of the administrator or his or her designee.

4.8.2. The Secretary shall approve, modify, or reject the proposed corrective action plan in writing. The organization may make modifications in conjunction with the Secretary.

4.8.3. The Secretary shall state the reasons for rejection or modification of any corrective action plan.

4.8.4. The organization shall submit a revised corrective action plan within 10 working days whenever the Secretary rejects a Corrective Action Plan.

4.8.5. The organization shall immediately correct an area of non-compliance that risks the health or safety of child or other persons.

4.8.6. The Secretary shall determine if corrections have been made.

4.9. Waivers and Variances.

4.9.1. An organization shall comply with all relevant requirements unless a waiver or variance for a specific requirement has been granted through a prior written agreement. This agreement shall specify the specific requirement to be waived, the duration of the waiver, and the terms under which the waiver is granted.

4.9.2. Waiver of specific requirements shall be granted only when the organization has documented and demonstrated that it complies with the intent of the particular requirement in a manner not permitted by this rule.

4.9.3. The waiver shall contain provisions for a regular review of the waiver.

4.9.4. When an organization fails to comply with the waiver agreement, the agreement is subject to immediate cancellation. The secretary shall determine compliance with the waiver agreement.

4.10. Penalties.

4.10.1. The Secretary may deny the organization's application for licensure or licensure renewal; revoke or modify a license; or prohibit admissions or reduce child census for one or more of the following reasons:

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

4.10.1.b. The organization violates federal, state, or local law relating to building, health, fire protection, safety, sanitation, or zoning, or payment of worker's compensation or employment security taxes.

4.10.1.c. The organization conducts practices that jeopardize the health, safety, well-being, or clinical treatment of a child;

4.10.1.d. The organization fails or refuses to submit reports or make records available as requested by the Secretary; or

4.10.1.e. The organization refuses to provide access to its location or records as requested by the Secretary.

4.10.2. Where a violation of this rule may result in serious harm to children under care, the Secretary may seek injunctive relief against any person, corporation, child welfare organization or government official through proceedings instituted by the attorney general, or the appropriate county prosecuting attorney, in the circuit court of Kanawha County, or in the circuit court of any county where the children are residing or may be found.

4.10.3. Where the operation of a residential child care and treatment facility constitutes an immediate danger of serious harm to children served by the facility, the Secretary shall issue an order of closure terminating operation of the facility. A facility closed by the Secretary may not operate pending administrative or judicial review without court order.

4.11. Administrative and Judicial Review.

Any person, corporation, governmental official or child welfare organization, aggrieved by a decision of the Secretary made pursuant to this rule may contest the decision upon making a request for a hearing by the Secretary within 30 days of receipt of notice of the decision. Administrative and judicial review shall be made in accordance with the provisions of W. Va. Code § 29a-5-1, et seq. Any decision issued by the Secretary may be made effective from the date of issuance. Immediate relief there may be obtained upon a showing of good cause made by a verified petition to the circuit court of Kanawha County or the circuit court of any county where the affected organization of child welfare organization may be located. The pendency of administrative or judicial review shall not prevent the Secretary from obtaining injunctive relief as provided for in 4.10.b. of this rule.

W. Va. Code R. § 78-3-4