H. B. 2427
(By Delegates Williams, Morgan, Ennis, Moye,
C. Miller and Rowan)
[Introduced January 12, 2011; referred to the
Committee on Senior Citizen Issues then the Judiciary.]
A BILL to amend and reenact §16-5C-12 and §16-5C-13 of the Code of
West Virginia, 1931, as amended, all relating to nursing
homes; administrative appeals; complaint hearing procedures;
establishing an independent disputes resolution process for
nursing homes; clarifying the informal and formal review
process; and clarifying the judicial review process.
Be it enacted by the Legislature of West Virginia:
That §16-5C-12 and §16-5C-13 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5C. NURSING HOMES.
§16-5C-12. Administrative appeals.
(a) Any licensee or applicant aggrieved by an order issued
pursuant to sections five, six, ten or eleven of this article shall
have the opportunity to request an informal and formal hearing at
which the licensee or applicant may contest such order as contrary
to law or unwarranted by the facts or both. All of the pertinent provisions of article five, chapter twenty-nine-a of this code
shall apply to and govern such hearing and the administrative
procedures in connection with any formal hearing.
The director may impose the following prior to or during the
pendency of a hearing:
(1) A reduction in the bed quota pursuant to section eleven of
this article;
(2) Transfer of residents and a ban on new admissions pursuant
to section eleven of this article.
(b) Informal hearings shall be held within twenty working days
of the director's receipt of timely request for appeal, unless the
licensee or applicant aggrieved by the order consents to a
postponement or continuance. In no event may the informal hearing
occur more than thirty business days after the director receives
timely request for appeal. At the informal hearing, neither the
licensee or applicant nor the director may be represented by an
attorney. Within ten days of the conclusion of the informal
hearing, the director shall issue an informal hearing order,
including a basis for the decision.
(c) If the applicant or licensee requested a formal hearing
only, the director and the licensee shall proceed in accordance
with the provisions of the department of health rules of procedure
for contested case hearings and declaratory rulings. If the
applicant or licensee also requested an informal hearing and if the order is not favorable to the applicant or licensee, the director
shall notify the administrative hearing examiner of the request for
an appeal within five business days of issuing the informal hearing
order.
(a) Any licensee or applicant adversely affected by a cited
deficiency or denial of an application may request an informal and
formal hearing. The licensee or applicant may contest a cited
deficiency or denial of an application as contrary to law or
unwarranted by the facts or both.
(b) The director shall contract with an independent third
party to conduct informal dispute resolution (IDR) for facilities
licensed under this article. This independent third party shall be
accredited by the Utilization Review Accreditation Commission.
(c) The informal dispute resolution process, including
conferences, constitutes an informal administrative process and is
not a formal evidentiary hearing. Use of informal dispute
resolution does not waive the applicant's or facility's right to a
formal hearing.
(d) The informal dispute resolution process consists of the
following:
(1) No later than ten working days following the last day of
the survey, inspection or complaint investigation, the director
shall by certified mail transmit to the facility a statement of
deficiencies committed by the facility. Notification of the availability of an informal dispute resolution and an explanation
of the informal dispute resolution process shall be included in the
transmittal;
(2) Within ten calendar days of receipt of the statement of
deficiencies, the facility shall return a plan of correction to the
director. Within the ten-day period, the facility may request in
writing an informal dispute resolution conference to refute the
deficiencies cited in the statement of deficiencies;
(3) Within ten working days of receipt of the written request
for a request for an informal dispute resolution conference or
formal hearing made by a facility, the independent third party
shall hold an informal dispute resolution conference unless
otherwise requested by the facility. The informal dispute
resolution conference provides the facility with an opportunity to
provide additional information or clarification in support of the
facility's contention that the deficiencies were erroneously cited.
(4) The facility may be accompanied by counsel during the IDR
conference. The type of informal dispute resolution held is at the
discretion of the facility, but is limited to:
(A) A desk review of written information submitted by the
facility; or
(B) A telephonic conference; or
(C) A face-to-face conference held at the facility.
(5) If the independent third party determines the need for additional information, clarification, or discussion after
conclusion of the informal dispute resolution conference, the
division and the facility shall present requested information or
shall be present.
(6) Within ten days of the informal dispute resolution
conference, the independent third party shall provide or make a
determination, based upon the facts and findings presented, and
shall transmit the decision and rationale for the outcome in
writing to the facility and the division.
(7) If the director disagrees with the determination, the
director shall reject the determination made by the third party
then transmit the director's decision and rationale for the
reversal of the independent third party's decision to the facility
within ten calendar days of receiving the independent third party's
decision.
(8) If the independent third party determines that the
original statement of deficiencies should be changed as a result of
the informal dispute resolution conference and the director
supports the determination, the director shall transmit a revised
statement of deficiencies to the facility with the notification of
the determination within ten calendar days of the decision to
change the statement of deficiencies.
(9) Within ten calendar days of receipt of the determination
made by the independent third party and the revised statement of deficiencies, the facility shall submit a revised plan of
correction to the division.
(10) The division may not post on its web site or enter data
into the Centers for Medicare & Medicaid Services Online Survey,
Certification and Reporting System, or report to any other agency,
any information about the deficiencies which are in dispute unless
the dispute determination is made and the facility has responded
with a revised plan of correction, if needed.
(f) If the applicant or licensee requests a formal hearing,
the director and the licensee shall proceed in accordance with the
provisions of article five, chapter twenty-nine-a of this code.
(g) If the applicant or licensee also requested an informal
hearing and if the order is not favorable to the applicant or
licensee, the director shall notify the administrative hearing
examiner of the request for an appeal within five business days of
issuing the informal hearing order.
§16-5C-13. Judicial review.
Any licensee adversely affected by an order of the director
rendered after a hearing held in accordance with the provisions of
section twelve of this article is entitled to judicial review
thereof. All of the pertinent provisions of section four, article
five, chapter twenty-nine-a of this code shall apply to and govern
with like effect as if the provisions of said section four were set
forth in extenso in this section.
The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the Supreme Court of
Appeals in accordance with the provisions of section one, article
six, chapter twenty-nine-a of this code.
Any licensee or applicant adversely affected by a decision of
the director entered after a hearing may obtain judicial review of
the decision in accordance with the provisions of section four,
article five, chapter twenty-nine-a of this code, and may appeal
any ruling resulting from judicial review in accordance with the
provisions of article six, chapter twenty-nine-a of this code.
NOTE: The purpose of this bill is to establish an independent
dispute resolution process for nursing homes.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.